UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

APEX COLORS, INC., )

Plaintiff, )

)

v. ) CAUSE NO.: 2:14-CV-273-PRC

)

CHEMWORLD INTERNATIONAL LIMITED, )

INC., CHEMWORLD INTERNATIONAL )

LIMITED, LLC, ATUL MODI, and MANOJ )

MODI, )

Defendants. )

_____________________________________ )

)

APEX COLORS, INC., )

Plaintiff, )

)

v. )

)

PAUL BYKOWSKI, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on Plaintiff’s Second Motion to Compel Responses to the

January 5, 2016 Discovery and for Sanctions [DE 377], filed by Plaintiff Apex Colors, Inc. on May

27, 2016. Defendants filed a response on June 4, 2016, and Plaintiff filed a reply on June 8, 2016.

Federal Rule of Civil Procedure 37(a)(3)(B) allows a party seeking discovery to move for

an order compelling an answer, designation, production, or inspection if a party fails to answer an

interrogatory submitted under Rule 33 or a party fails to respond to a request made under Rule 34.

See Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). Rule 37(a)(5)(A) governs attorney’s fees when the motion

to compel is granted or if the requested discovery is provided after the motion was filed and provides

that the Court “must, after giving an opportunity to be heard, require the party or deponent whose

conduct necessitated the motion, the party or attorney advising the conduct, or both to pay the

movant’s reasonable expenses incurred in making the motion, including attorney’s fees,” unless the
opposing party’s non-disclosure was substantially justified or circumstances make an award of

expenses unjust. Fed. R. Civ. P. 37(a)(5).

On January 5, 2016, Plaintiff issued a written discovery request comprised of interrogatories

and requests for production of documents to all Defendants. Defendants did not respond until March

1, 2016, after a first Motion to Compel was filed. On March 4, 2016, the parties met and conferred,

and Defendants supplemented their discovery responses. Because Plaintiff contended that

Defendants had not fully responded, the parties again met and conferred on May 17, 2016. Plaintiff

explained what was needed to complete the production, and after the conference, Plaintiff provided

a detailed list of the outstanding discovery. Defendants did not respond. Plaintiff asks the Court to

compel production of the documents, which are needed for Plaintiff to prepare for depositions.

Specifically, Plaintiff asks the Court to compel Defendants to answer the discovery dated January

5, 2016, to compel Defendants to produce spreadsheets in Excel format, and to award reasonable

costs, including attorney fees, incurred in bringing this motion.

As an initial matter, the Court addresses Defendants’ argument that Chemworld already

supplied responsive documents to Plaintiff prior to June 4, 2014, through Bykowski’s bankruptcy.

Although this may be true, Chemworld does not identify which documents produced during the

bankruptcy are responsive to specific discovery requests. Although Defendants are not required to

produce the same documents multiple times within this litigation, Defendants are required to identify

in their responses the specific documents that are responsive to a discovery request and when and

in what context the documents were previously produced in this litigation. It is also not the Court’s

responsibility to review hundreds of pages of unspecified documents to determine whether

Defendants have already provided discovery. As for interrogatories, the response to an interrogatory

must contain the response, be complete in itself, and should not reference outside documents “at

least where such references make it impossible to determine whether an adequate answer has been

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given without an elaborate comparison of answers.” Scaife v. Boenne, 191 F.R.D. 590, 594 (N.D.

Ind. 2000); see also Fed. R. Civ. P. 33(d).

Also, Defendants make arguments based on the Court’s findings in its ruling on the Motion

for Preliminary Injunction. As this Court has previously explained, the Court’s factual findings in

the ruling on the Motion for Preliminary Injunction were based on the evidence presented at the

hearing, which was not a trial on the merits. In addition, the motion for preliminary injunction and

the related hearing addressed only three of the five claims in this original litigation. The Court’s

ruling on the Motion for Preliminary Injunction does not affect the scope of discovery in this case.

Moreover, Defendants waived any such objection by not raising it with Plaintiff when Defendants

initially responded to the discovery requests. See Fed. R. Civ. P. 33(b)(4).

Defendants state that they are confused by what is meant by “any person or company with

which [Paul Bykowski] has been affiliated” in Interrogatories 1 and 2, which ask what payments

Chemworld made to Paul Bykowski or “any person or company with which he has been affiliated”

and a description of the payment. Plaintiff provided examples of who the affiliated people or

companies might be, identifying Bykowski’s wife Geri Bykowski, Bykowski’s company GB

Consulting, and Bykowski’s attorney Patrick McEuen (in the event Chemworld paid Mr.

Bykowski’s share of attorney fees in lieu of paying Mr. Bykowski directly). In their response brief,

Defendants also question whether Apex or Finos should be considered businesses with which

Bykowski was “affiliated,” and Plaintiff answers in the reply brief in the affirmative. Therefore, in

providing supplemental responses to Interrogatories 1 and 2 as ordered below, Defendants are

ORDERED to include Geri Bykowski, GB Consulting, Patrick McEuen, Apex, and Finos as “any

person or company with which he has been affiliated.”

Finally, the Court notes that Defendants did not provide a specific response to any of the

following arguments raised by Plaintiff regarding Interrogatory 1, Interrogatory 2, Request 2,

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Interrogatory 3, or Interrogatory 4; however, as noted below, Defendant provided a response

regarding the production. The Court considers each disputed discovery response in turn.

1. Interrogatory 1

Interrogatory 1 provides:

For the period 2003 to the present, describe the terms under which any

CHEMWORLD INTERNATIONAL LIMITED, INC., CHEMWORLD

INTERNATIONAL LIMITED, LLC (hereinafter referred to as “Chemworld” or “the

Chemworld entities”) [sic] has done business with Paul Bykowski or any person or

company with which he has been affiliated (such as Geri Bykowski or GB

Consulting). For example, any agreement (whether written or not) to pay Mr.

Bykowski a certain percentage on sales he developed or identified. Include in this

description any terms under which part or all of the payments due Bykowski were

agreed to be withheld, such as for costs (and specify what costs) or for other

purposes (and specify that purpose, such as to pay Bykowski’s share of attorney

fees). If the terms that Chemworld has compensated/paid Bykowski or any person

or company affiliated with him have changed over time, provide the dates. For

example, if Bykowski asked Chemworld to pay Geri Bykowski money on certain

dates identify those dates and the stated reason for each change and the reason for

it.

Defendants responded to Interrogatory 1. In the instant motion, Plaintiff argues that

Defendants have given incomplete, conflicting answers. Plaintiff notes that the Chemworld

Defendants stated that, for the period 2010 through 2012, the Chemworld Defendants paid GB

Consulting a certain percentage of profits on pigment sales. Bykowski’s supplemental answers state

that after 2012, Chemworld paid him under the same commission arrangement it had previously paid

GB Consulting. Finally, counsel for Defendants stated that at some unspecified time, Chemworld

began paying Bykowski additional profits on each sale. Plaintiff argues that this statement of counsel

conflicts with Bykowski’s answer that his share of the profits after 2012 was the same as the profits

paid to GB Consulting from 2010 through 2012. Plaintiff also argues that counsel’s statements are

not competent evidence because they are not made by the Defendants under oath in response to the

Interrogatory. The Court finds that defense counsel’s response is not competent evidence and that

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further clarification is required by Defendants regarding the terms of payment to Bykowski after

December 31, 2012. Accordingly, the Court ORDERS Defendants to supplement their response to

Interrogatory 1 and identify when Chemworld began paying Bykowski additional profits on each

sale.

In addition, Plaintiff argues that the answer is incomplete as it fails to identify, for the pre2013 period, the terms of payment for dye sales, the terms of payment for lab work, and any terms

and dates under which Chemworld made payments to Geri Bykowski. The Court notes that

Defendants provided information regarding the sale of dyes in their response; however, the answer

does not address these specific topics that are within the scope of the original interrogatory.

Therefore, in the interest of completeness, the Court ORDERS Defendants to supplement their

response to Interrogatory 1 and identify, for the pre-2013 period: (1) the terms of payment for dye

sales; (2) the terms of payment for lab work; and (3) any terms and dates under which Chemworld

made payments to Geri Bykowski.

Finally, Plaintiff argues that the answer is incomplete as it fails to identify, for the post-2013

period, the terms of payment for lab work, the date that the lab work payment became wrapped into

the additional higher commission rate, and whether these terms were for dye or pigment sales or

both. As noted above, because there appears to be some conflict in the responses regarding whether,

after December 31, 2012, Bykowski was paid the same commission as had previously been paid to

GB Consulting, the Court ORDERS Defendants to supplement their response to Interrogatory 1 and

identify, for the period after December 31, 2012: (1) the terms of payment for lab work by

Bykowski; (2) the date that the lab work payment became wrapped into the additional higher

commission rate; and (3) whether these terms were for dye or pigment sales or both.

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2. Interrogatory 2 and Document Request 2

Interrogatory 2 provides:

For the period 2003 to the present, state or identify business records showing all

payments made by any Chemworld entity to Paul Bykowski or any person or

company with which he has been affiliated (such as Geri Bykowski or GB

Consulting) and the reason for such payment.

Document Request 2 provides:

Spreadsheets and/or reports, such as accounting or sales reports, showing sales,

profits and payments to Bykowski and/or related persons or entities related to sales

from customers developed or identified by Paul Bykowski.

In the motion, Plaintiff states that this information was requested so that Plaintiff can

calculate damages. Plaintiff explains that Defendants were asked the purpose of each payment so

that Plaintiff could separate payments that Plaintiff believes are recoverable as damages (such as

sales commissions) from those that are not (such as expense reimbursements). Plaintiff notes that

Chemworld produced a spreadsheet showing sales commissions paid to GB Consulting from 2010-

2012 and a second spreadsheet showing four additional 2012 payments made to Bykowski directly.

Chemworld speculated that the payments in 2012 were for expense reimbursement or lab work.

Bykowski produced a 1099 form issued by Chemworld for the year 2015 but did not state the

purpose of the payments this 1099 form represented. Defendants also produced the sales records for

the period 2013-2016 that show the revenues from sales attributable to Bykowski but did not show

profits or what percentage of those profits were paid to Bykowski. 

Plaintiff asserts that the missing information includes: (1) the profits made on each of the

2013-2016 sales; (2) the amounts paid to Bykowski on each of the 2013-2016 sales; and (3) payment

made to Bykowski for other reasons, such as expense reimbursements or lab work. 

Plaintiff then represents that, in order to resolve this issue, Plaintiff located the accounting

records that appear to have been produced by Chemworld in the bankruptcy court. Plaintiff attached

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these records to an email and asked Defendants to “Please confirm that these are accurate records

from your client and provide the Excel spreadsheets from 2014 and 2015 and through April of 2016

for Paul/GB/Geri/Color Consulting and we should be okay. In addition, please ask CW how they

accounted for the four payments that they are unsure about–whether it was for services (color

consulting work) or out of pocket expenses should be clear based on how they accounted for it in

their books.” (Pl. Mot, Ex. E). Plaintiff represents that Defendants never responded to this email.

Defendants did not address this specific request or the email in their response to the instant motion.

Defendants have offered no objection to producing this information.

Therefore, the Court ORDERS Defendants to respond to the following requests from the

May 17, 2016 email: (1) confirm that the attachments to the May 17, 2016 email from the

bankruptcy proceeding are accurate records from Defendants; (2) provide Excel spreadsheets from

2014 and 2015 and through April 2016 for Paul Bykowski, GB Consulting, Geri Bykowski, and

Color Consulting; and (3) provide a supplemental response to Interrogatory 2 explaining how

Chemworld accounted for the four payments that they are unsure about.

3. Interrogatories 3 and 4

Interrogatory 3 provides:

For the period 2003 to the present, state or identify business records showing all

payments received from customers developed or identified by Paul Bykowski, and

state or identify business records showing what amount of that payment went to Mr.

Bykowski or another company or person at his direction. Also state or identify

business records itemizing any expenses associated with these sales (for example, the

cost of Chemworld purchasing the product from a supplier).

Interrogatory 4 provides: 

For the period 2003 to the present, state or identify business records showing profits

attributable to sales from customers developed or identified by Paul Bykowski.

In the motion, Plaintiff represents that Defendants produced sales information but did not

provide costs or profits. Plaintiff represents that Defense counsel has said that Plaintiff’s counsel

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should be able to calculate the profit on each sale by subtracting the cost from the sales price.

Plaintiff argues to the Court that this is not feasible because Defendants have not yet provided the

cost attributable to each sale and because counsel is not competent to present evidence about

Chemworld’s profits. Finding that Defendants have not provided a complete answer to

Interrogatories 3 and 4, the Court ORDERS Defendants to provide a supplemental response to

Interrogatories 3 and 4 and provide the missing cost and profit information.

4. Excel Spreadsheet

In Plaintiff’s Request for Production, Plaintiff asked Defendants to produce spreadsheets in

native format, which, in this instance, was Excel format. Defendants produced spreadsheets in .pdf

format instead, which is unsearchable. Plaintiff asks the Court to compel Defendants to produce the

spreadsheets in the native Excel format, arguing that it would be “simple” and would permit Plaintiff

to sort the data by date, customer name, or item description. 

Defendants respond, without citation to law, that Plaintiff is not entitled to Defendants’

electronically stored information (ESI) in Chemworld’s native Excel format and that .pdf format is

sufficient.

First, Plaintiff requested that the record be produced in “native electronic format” and

Defendants did not raise this objection in initially responding to the discovery; thus, the objection

is waived. Second, Federal Rule of Civil Procedure 34(b) requires a party to produce electronically

stored documents as they are kept in the usual course of business or in a reasonably useable form.

See Fed. R. Civ. P. 34(b)(2)(E) (providing that “[a] party must produce documents as they are kept

in the usual course of business or must organize and label them to correspond to the categories in

the request” and that “[i]f a request does not specify a form for producing electronically stored

information, a party must produce it in a form or forms in which it is ordinarily maintained or in a

reasonably useable form or forms”). Because the .pdf format is not searchable, the format in which

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Defendants produced the spreadsheets is not reasonably useable. Third, Defendants do not argue that

it would be difficult to produce the spreadsheets in Excel format.

The Court grants the Motion to Compel as to the format of the spreadsheets and orders

Defendants to produce the spreadsheets in the native, Excel format.

5. Sanctions

Having considered Rule 37(a)(5), the Court finds that, under all the circumstances of this

litigation and the specific nature of most of this motion to compel, an award of reasonable costs

occasioned by this motion is not warranted except to the extent Defendants refused to provide the

spreadsheets in native format. Some interrogatories are long and complex, containing multiple parts

with examples but not a full description of all sought-after categories. For the most part, the

remaining issues addressed in this Opinion and Order constitute refining and clarifying the scope

of the interrogatories. However, because Defendants have offered no rationale for failing to provide

the spreadsheets in native format, reasonable costs incurred in bringing the motion to compel

production in native format is warranted. Therefore, the Court awards Plaintiff its reasonable costs,

including attorney fees, incurred only in bringing the portion of the motion to compel regarding the

failure to provide the spreadsheets in excel format.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS Plaintiff’s Second Motion to Compel

Responses to the January 5, 2016 Discovery and for Sanctions [DE 377] and ORDERS Defendants

to provide supplemental discovery responses as set forth in this Opinion and Order. 

The Court AWARDS Plaintiff its reasonable costs, including attorney fees, incurred in

bringing that portion of the motion to compel the production of spreadsheets in native format only.

The Court ORDERS Plaintiff to FILE with the Court, on or before June 29, 2016, a verified

statement of reasonable costs incurred in bringing that portion of the motion.

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 SO ORDERED this 16th day of June, 2016.

 s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES MAGISTRATE JUDGE

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