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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA (Ft. Lauderdale)

CASE NO.: 0:20-cv-61469-RS

Akai Custom Guns, LLC, et al.,

Plaintiffs,

vs.

KKM Precision, Inc., et al., 

Defendants.

/

DEFENDANT KKM PRECISION, INC.’S RESPONSE TO MOTION TO COMPEL 

ACCURATE ANSWERS TO PLAINTIFFS’ SECOND REQUESTS FOR ADMISSION, 

PLAINTIFF’S FIRST, SECOND, AND THIRD REQUESTS FOR PRODUCTION OR IN 

THE ALTERNATIVE DEEM MATTERS ADMITTED [DOC. 86] 

COMES NOW, Defendant, KKM Precision, Inc. (“KKM”), by and through the 

undersigned Counsel, and for its response to the Plaintiffs’ Motion to Compel [Doc. 86] dated June 

11, 2022, states:

1. On or about June 11, 2022, Plaintiffs filed a Motion to Compel [Doc. 86] relating to KKM’s 

Answers to Second Requests for Admission, and Plaintiffs’ First, Second, and Third 

Requests for Production. This Response will respond to the relevant Paragraph numbers 

from Plaintiffs’ Motion [Doc. 86] by reference to the particular Paragraph being responded 

to.

2. As an initial statement, the Plaintiffs spend the bulk of their Motion attempting to argue 

disputed issues of fact that are meant to be proven at trial or through further discovery. 

Plaintiffs’ Motion is, in actuality, a disguised motion for summary judgment, and yet it is 

based almost entirely upon unverified and disputed issues of fact and upon varying disputed 

interpretations of evidence. KKM objects to the Court’s consideration of all unverified 

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and otherwise un-authenticated and inadmissible evidence cited in the Plaintiffs’ Motion. 

While the Plaintiffs may dispute certain discovery responses that KKM has asserted 

throughout the instant case, those disputes are no different than the differing interpretations 

given to evidence in any lawsuit. A disputed issue of fact, however, does not give rise to 

a motion to compel. KKM will address the specific, and yet unverified, allegations of the 

Plaintiff by reference to the relevant paragraph number from their Motion.

3. In Paragraph 7 of the Plaintiffs’ Motion, they allege that Defendant KKM “has tampered 

with evidence in this matter by way of altering its testing protocol.” See Motion to Compel 

at ⁋ 7. Specifically, they allege that KKM has changed the term “416 R” to “416 

Restricted.” Plaintiffs fail to attach to their Motion any prior version of the referenced 

document using “416 R” instead of “416 Restricted,” so the Motion at Paragraph 7 is itself 

deficient and lacks any proof whatsoever of the alleged alteration. Regardless, through 

further discovery the Plaintiffs would learn that the “tampering” that the Plaintiffs’ 

argument arises from arose years ago because they base their claim on an initial draft or a 

document that was revised years ago as it was refined. The Plaintiffs’ claims relate to a 

“testing protocol” that was created solely as a result of the Plaintiffs’ claims (which no 

prior customer of KKM had ever asserted) and which went through more than one iteration. 

The allegation that KKM “has tampered with evidence” is counter-factual, and the 

Plaintiffs’ Motion supplies no evidence to the contrary other than their bare assertion. In 

fact, the very document that the Plaintiffs’ allegation of “tampering” is based upon uses 

both the phrase “416 Restricted,” as well as the term “416R,” which the Plaintiffs claim 

was removed from the document through “tampering.” 

4. More substantively, in Paragraph 7 the Plaintiffs argue that KKM’s use of the phrase “416 

Restricted” “is made up fictitious nonsense, and is inaccurate and disingenuous. . . .” Id. 

Plaintiffs’ argument itself is disingenuous. The “R” in the phrase “416 R” when 

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referencing the type of steel used to make KKM’s gun barrels itself means “Restricted.” 

“R” is not an abstract reference by KKM, it is a reference to the specific “restrictions” that 

KKM places on the steel that it orders to manufacture its gun barrels. In Paragraph 2 of 

KKM’s Response to Plaintiffs’ Second Request for Admissions, KKM states that the 

“barrels sold to Akai were made from steel bar stock that KKM ordered to be manufactured 

within its 416 Restricted specifications . . .” and then KKM goes on to specify the 

restrictions of the various chemical components within its barrel steel. See Exhibit 3 to 

Plaintiffs’ Motion. Plaintiffs may not like, or even agree with, KKM’s use of the term, but

that does not make it sanctionable. Rather this is a disputed issue of fact to be adjudicated 

by the trier of fact. 

5. In Paragraphs 8 and 9 of the Plaintiffs’ Motion, they allege that Defendant KKM sent a 

text message to non-party Nathan Carter that the Plaintiffs suggest “proves” that KKM sold 

barrels made of Carpenter BQ5 steel prior to 2020. Plaintiffs claim that “KKM confirmed 

the use of BQ5 prior to 2020 and conveniently avoids addressing that barrels made of BQ5 

steel were available for sale during this period. . . .” Once again, the Plaintiffs mistake a 

disputed issue of fact for a sanctionable discovery violation. Plaintiffs reference an 

unverified document attached to their First Amended Complaint as Exhibit “2.” KKM 

maintains that it did not manufacture, sell, or distribute any consumer barrels from 

Carpenter BQ5 steel prior to 2020. Rather, the only Carpenter BQ5 barrels created by 

KKM prior to that time were non-consumer barrels specially ordered for testing by the 

United States Army Marksman Unit. At that time these barrels were not commercially 

available from KKM, either direct to consumer (such as Plaintiffs) or through distributors

(such as Shooters Connection, Inc.). The referenced text message was sent because KKM 

believed that the recipient was a member of the United States military at the time, and 

KKM did not know whether he possessed a military grade barrel or a consumer barrel. 

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Plaintiffs have supplied no evidence to the contrary, because no such evidence exists. 

Plaintiffs’ attempt to use unverified motion practice as a substitute for discovery is simply 

improper.

6. In Paragraph 10 of their Motion, the Plaintiffs reference an unverified text message sent 

from a non-party, John Vleiger. This text message says that there is a “99% chance [that a 

KKM barrel sold b Shooters Connection, Inc.] is 416R BQ5 (barrel quality 5). . . .” 

Plaintiffs argue that this non-verified text message from a non-party “confirmed the use 

and sale of BQ5, again prior to 2020.” This text message is inadmissible in its unverified 

form and constitutes hearsay from a non-party who, presumably, does not know what type 

of steel that KKM-manufactured barrels were made of.

7. In Paragraph 11 of their Motion, the Plaintiffs reference yet another unverified exhibit to 

argue that KKM “confirmed the use and sale of BQ5 prior to 2020.” Once again, KKM 

asserts that the only Carpenter BQ5 barrels created by KKM prior to that time were nonconsumer barrels specially ordered for testing by the United States Army Marksman Unit. 

At that time these barrels were not commercially available from KKM, either direct to 

consumer or through distributors. It is accurate that at this time KKM manufactured 

Outukumpo 416 R barrels and Carpenter BQ5 barrels (which is simply Carpenter’s 

proprietary name for its own “barrel quality” 416 steel, which comports with its customers’ 

416 R restrictions). Once again, the Plaintiffs confuse a disputed issue of fact with a 

sanctionable discovery violation. 

8. In Paragraph 12 of their Motion, the Plaintiffs argue that KKM’s document production 

shows steel purchases from Outokumpu from 2015 to present and from Carpenter for “No. 

5 BQ” in 2020. Plaintiffs argue that “[n]owhere in any responsive discovery documents 

are ‘416R’ purchases are [sic] shown, nor is there any ‘416 Restricted’ as the latter is not 

a grade of steel that exists in reality. KKM respectfully disagrees with Plaintiffs’ unverified 

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conclusion that “’416 Restricted’ . . . is not a grade of steel that exists in reality.” Instead, 

KKM yet again restates that the “R” in “416 R” steel referenced by the Plaintiffs means 

“Restricted.” While the Plaintiffs may not accept or agree with this contention, it is 

undeniably a disputed issue of fact that the trier of fact will ultimately decide. 

9. In Paragraph 13, the Plaintiffs allege that the Defendants response to Request for 

Admission No. 9 “should be stricken as untrue” because the Defendants have not produced 

a joint testing protocol. However, subsequent to the Defendants’ willingness to jointly test 

the subject barrels, the Plaintiffs themselves unilaterally tested those barrels and, as of the 

date of this Response, have not produced those barrels for testing by Defendants, despite 

the Defendants having formally requested the barrels through discovery. Nothing about 

KKM’s Response to Request for Admission No. 9 is untrue.

10. In Paragraph 14, the Plaintiffs rely upon the prior unverified and disputed allegations to 

argue that the KKM sold BQ5 barrels prior to 2020, yet, KKM did not manufacture, 

distribute, or sell any Carpenter BQ5 barrels prior to 2020. KKM reaffirms that prior to 

2020 it manufactured and provided the United States Army Marksmanship Unit with 

Carpenter BQ5 barrels for testing, which were not publicly marketed, distributed, or sold.

11. Very simply, the Plaintiffs have mistaken routine disputes over fact with “evidence 

tampering” or lying. The Plaintiffs’ unverified Motion proves nothing, and the Plaintiffs 

cannot shortcut the process of proving disputed facts through testimony, exhibits, and trial 

by merely asserting that their version of events is indisputable. It is not, and KKM does 

dispute their claims.

MEMORANDUM OF LAW

I. Plaintiffs’ Motion is an Improper Attempt to Shortcut Discovery and Obtain 

Summary Judgment Based Upon Unverified Allegations on Disputed Issues.

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Plaintiffs’ Memorandum of Law presents a hodgepodge of legal argument, most of which 

is not relevant to the substance of their Motion. Plaintiffs begin by citing to case law relating to 

the “relevance” of discovery (see Motion at pg. 7), yet their Motion does not spend any time 

arguing an objection to discovery requests based upon relevancy. Plaintiffs next cite case law 

relating to the time within which a party may respond to a request for admissions (see Motion at 

pg. 8) yet the Plaintiffs’ Motion by both its style (relating to the Plaintiffs’ Second Request for 

Admissions, which were responded to) and by its ad damnum clause (relating to the Plaintiffs’ 

Second Request for Admissions, which were responded to) does not seek to deem admitted any 

Requests for Admission not responded to.1 

Plaintiffs’ Motion is nothing more than an attempt to shortcut the required process of 

discovery and proof at trial by claiming disputed issues of fact as having been admitted, when 

there are reasonable (and truthful) explanations as to why the Plaintiffs’ arguments fail. Federal 

Rule of Civil Procedure 56(c)(2) is very clear that “a party may object that the material cited to 

support or dispute a fact cannot be presented in a form that would be admissible in evidence,” and 

yet the Plaintiffs’ entire Motion essentially asks this Court to accept as true their unverified (and 

thus inadmissible) interpretation of KKM’s own interpretation of those same facts. That dispute 

– how certain words, phrases, or statements were intended to be interpreted – forms the very 

essence of the disputed issues that must be adjudicated at trial and not through summary disposition 

(particularly when the Plaintiffs do not move for summary judgment formally but instead seek a 

back-door summary adjudication through a “motion to compel” what the Plaintiffs deem, but 

KKM does not, to be “accurate” answers to discovery). Where a party has not “set forth such facts 

as would be admissible in evidence,” a court may not grant summary judgment on a disguised 

 

1 Paragraph 7 of the Plaintiffs’ Motion makes reference to a First Request for Admissions which 

is not addressed in the style or ad damnum clause of the Motion and which KKM will address by 

its own separate Motion.

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motion for summary judgment. See, e.g., Wolford v. Budd Co., 149 F.R.D. 127, 132 (W.D. Va. 

1993).

WHEREFORE, Defendant KKM Precision, Inc., respectfully requests that this Court deny 

the Plaintiff’s Motion to Compel, and issue such further relief as this Court deems just and proper.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via 

ECF to Richard J. Fiato, Esq., Law Offices of Fiato, 550 W. Merrill St., Ste. 200, Birmingham, MI 

48009 (fiatolaw@gmail.com); Edmund S. Yee, Esq., McKelvie, McKelvie, Yee & Epacs, P.C. 

280 W. Maple Rd., Ste. 220, Birmingham, MI 48009 (eyee@mmyelaw.com); John A. Chiocca, 

Esq., Cole, Scott & Kissane, P.A., 222 Lakeview Ave., Ste. 120, West Palm Beach, FL 33401 

(john.chiocca@csklegal.com; stephanie.chiocca@csklegal.com); Nicholas D. Freeman, Esquire 

and John Y. Benford, Esquire, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 111 N. Orange 

Ave., Ste. 1200, Orlando, FL 32801 (nicholas.freeman@wilsonelser.com; 

John.bedford@wilsonelser.com), this 27th day of June, 2022.

/s/ Kevin Robinson

Kevin P. Robinson, Esquire

Florida Bar No.: 0014650

ZIMMERMAN, KISER & SUTCLIFFE, P.A.

315 E. Robinson St., Suite 600 (32801)

P.O. Box 3000

Orlando, FL 32802

Telephone: (407) 425-7010

Facsimile: (407) 425-2747

Counsel for Defendant, KKM Precision, Inc.

krobinson@zkslawfirm.com

jwenhold@zkslawfirm.com

service@zkslawfirm.com

KPR/kpr

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