{46547.00001 / W1728096} 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DOORAGE, INC.,

Plaintiff,

v.

BLUE CRATES, LLC,

Defendant.

)

)

)

)

)

)

)

)

)

Case No.: 1:20-cv-421

DEFENDANT BLUE CRATES, LLC’S 

MOTION FOR SANCTIONS PURSUANT TO F.R.C.P. RULE 37(d)

Defendant Blue Crates, LLC, through its attorneys, Maron Marvel Bradley Anderson 

& Tardy LLC, submits this Motion for Sanctions, and in support states as follows:

I. Introduction

Plaintiff’s withholding of documents, complete failure to investigate in response to 

discovery requests, and denying the existence of certain documents is sanctionable under 

FRCP 37(d), and dismissal of the case is an appropriate sanction. Since Defendant’s initial 

Rule 34 request for production in 2020, Plaintiff has knowingly withheld or failed to 

adequately investigate discovery. Only after Defendant issued five Rule 37 letters, 

conducted multiple calls, took the deposition of Plaintiff’s owner/corporate representative, 

briefed Plaintiff’s Motion for Summary Judgment, filed a Motion to Compel, and received a 

non-party subpoena demonstrating the existence of the withheld documents at issue did 

Plaintiff finally disclose over 7,050 pages of documents and 204 spreadsheets and 

PowerPoints relevant to Defendant’s discovery requests. This withholding of relevant 

documents that were clearly in Plaintiff’s possession in 2020, has destroyed all semblance 

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 1 of 16 PageID #:1404
{46547.00001 / W1728096} 2

of candor and faith in the completeness of the discovery that has been provided, and should 

result in dismissal of Plaintiff’s remaining damages claim as a sanction.

II. Discovery History

The pattern of Plaintiff’s withholding of documents in this matter dates to

Defendant’s initial Rule 34 discovery requests in June 2020. As the court is aware, this 

matter involves Plaintiff’s damages stemming from a copywrite infringement claim, with 

Plaintiff alleging that it suffered $2,175,048 in actual damages allegedly caused by 

Defendant using an infringing marketing video.1 Actual damages in the context of a 

copyright infringement are measured by the claiming parties profit lost due to the 

infringing work and, obviously, multiple categories of documents are relevant to the 

measure of a company’s lost profits, if any.

Since June 2020, Defendant has continually sought documents relevant to either the 

support or defense of Plaintiff’s absurd claim that Defendant’s use of Plaintiff’s work alone

resulted in lost profits exceeding $2 million. Plaintiff has consistently frustrated 

Defendant’s discovery efforts, providing only piecemeal disclosure of relevant documents. 

However, following Plaintiff’s July 28, 2023, supplemental disclosure (after both Plaintiff’s 

deposition and briefing its summary judgment motion), it became clear that thousands of 

pages of relevant documents withheld, or Plaintiff negligently failed investigate its records 

in previous disclosures until its withholding of documents became obvious.

The timeline of the discovery dispute follows:

o June 4, 2020: Defendants’ Initial Rule 34 Discovery to Plaintiff (Ex. A);

o July 29, 2020: Defendant’s 1st Rule 37 Letter to Plaintiff (Ex. B);

1 Juxtaposed against Blue Crates total revenues of $21,824 in 2018 and $44,483 in 2019, with no 

profits realized in either year, and with less than 200 views of the infringing video.

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 2 of 16 PageID #:1405
{46547.00001 / W1728096} 3

o September 23, 2020: Defendant’s 2nd Rule 37 Letter to Plaintiff (Ex. C);

o April 1, 2021: Case placed on Bankruptcy Stay.

o February 1, 2023: Case removed from Bankruptcy Stay.

o February 3, 2023: Plaintiff’s Motion for Summary Judgment (Doc. 118);

o February 21, 2023: Status conference where Plaintiff’s counsel advised that 

Court that discovery is complete, and Defendant disagreed;

o February 23, 2023: Defendant’s supplemental RFPs to Plaintiff (Ex. D);

o February 23, 2023: Defendant’s 3rd Rule 37 Letter to Plaintiff seeking 

outstanding documents from June 4, 2020, through present (Ex. E);

o March 22, 2023: Plaintiff’s response to 3rd Rule 37 Letter (Ex. F);

o April 6,2023: Deposition of Plaintiff’s owner and corporate representative 

Sean Sandona (Ex. G);

o May 11, 2023: Defendant’s 4th Rule 37 Letter seeking previously requested 

relevant documents referenced at deposition (Ex. H); 

o May 12, 2023: Defendant issues multiple subpoenas, including to Samuel 

Lubeck (Ex. I);

o May 17, 2023: Samuel Lubeck’s subpoena response, which consists of two 

“Pitch Decks” with Doorage’s projections (Ex. J);

o June 12, 2023: Defendant’s 5th Rule 37 Letter to Plaintiff demonstrating 

Defendant’s understanding that additional documents related to categories 

of relevant discovery exist (Ex. K);

o June 13, 2023: Defendant’s Motion to Compel regarding discovery relevant to 

damages calculations and claimed lost profits and revenue (Doc. 141);

o July 28, 2023: Plaintiff’s supplemental production of 7,050 pages of 

documents and 240 un-bates labeled spreadsheets and PowerPoints 

produced to Defendant (Ex. L, provided via flash drive to the court); and

o September 15, 2023: Doorage’s supplemental responses to requests for 

production (Ex. M).

Beginning in July 2020, Defendant was required to engage in Rule 37 calls and letter 

writing to convince Plaintiff that its disclosures were clearly missing documentation 

relevant to Plaintiff’s claimed damages, presented by Plaintiff at that time in two page 

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 3 of 16 PageID #:1406
{46547.00001 / W1728096} 4

“workbooks”. (See, Ex. N and O). However, after months of attempting to obtain discovery 

on Plaintiff’s profits, revenues, marketing efforts, and other factors that would evidence 

and impact to profits, and with those efforts ongoing in 2021, the case entered a 

bankruptcy stay.

When the stay was lifted in 2023, Plaintiff did not contact Defendant to complete 

discovery. Instead, Plaintiff immediately filed a Motion for Summary Judgement, and 

signaled to the court a belief that discovery was complete. Indeed, at the first status 

conference after the stay lifted, despite Plaintiff’s statement it believed discovery was 

complete, Defendant requested and was afforded time to complete discovery that predated 

the stay to respond to Plaintiff’s Motion for Summary Judgment. Defendant immediately

requested supplementation of previous discovery and responses to its two 2020 Rule 37 

letters. Defendant also made efforts to clarify or refine the categories of documents sought 

with a supplemental Rule 34 Request for Production (Ex. D and E). The outstanding 

categories of documents relevant to the damages Defendant included the following: 

o Financial Statements, balance sheets, income statements

o Sales reports.

o Investor reports, including board meeting reports. 

o All Doorage’s projections of future revenue, costs, and profits from 2016 to 

present.

o All documents used to calculate the claimed $2,175,048 claimed damages.

o All materials relating to SEM from 2016, including impression counts and 

return on SEM spend. (See Ex. A, D, and E). 

In response, Defendant continued to receive unfounded objections and the 

piecemeal production of documents, prompting additional attempts at Rule 37 discussions 

all aiming simply to obtain documents relevant to the unsupported $2 million damage 

claim before proceeding with the deposition of Plaintiff’s corporate representative, Sean 

Sandona (“Sandona”), and responding to Plaintiff’s Motion for Summary Judgment. 

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 4 of 16 PageID #:1407
{46547.00001 / W1728096} 5

In response, Plaintiff’s counsel wrote to Defendant on March 22, 2023, stating “[a]s 

to Exhibits E and F2 attached to Blue Crates’ Rule 37 Letter, Doorage does not believe that it 

has any obligation to produce any additional documents relating to these documents, . . . “ 

(Ex. F). The letter went on to state that if Blue Crates wished to inquire about the 

calculation of damages methodology, it was more suitable for deposition testimony. At that 

time, the only documentation provided remotely supporting the claimed damages were tax 

returns and annual revenue summaries. There were no board meetings minutes or notes, 

no revenue projections (which Plaintiff’s damages were based on), no pitch decks with 

revenue information, no communications related to SEM returns documenting how the 

infringing video impacted Plaintiff’s customer acquisition, no support for revenue 

projections in the Plaintiff’s damage calculations, and no business plans produced by 

Plaintiff because it did not believe it had an obligation to do so. After rounds of written 

discovery, three Rule 37 letters, multiple phone calls, and years for Plaintiff to investigate 

its records, Defendant believed all documents relevant to the Rule 26 discovery requests 

had been provided and proceeded with the deposition of Doorage’s owner and corporate 

representative on April 6. 2023.3

During this deposition, Defense counsel came to realize that numerous documents 

relevant to previous requests had not been provided. Further, during questioning on the 

methodology Sandona used to calculate damages, Sandona acknowledged that the damages 

2 The documents referenced are the ‘workbooks’ attached to this Motion as Ex. N and Ex. O, each of 

which were provided without any supporting information in 2020, and during deposition Plaintiff 

claimed there was no supporting documentation for how the ‘workbooks’ generated other than 

back of napkin calculations and use of yellow pads that no longer exist. (See Docket entry #150 at 

page 10).

3 The deposition of Sean Sandona proceeded in his personal capacity as well as his capacity as 

Doorage’s Rule 30(b) witness.

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 5 of 16 PageID #:1408
{46547.00001 / W1728096} 6

calculations were based on pre-litigation revenue projections for Doorage, and maintained 

the projections and supporting documentation for the damage did not exist except on

yellow pads and back of napkin tabulations. (See Ex. G at p. 147 - 148). Significantly, when 

presented with questions regarding projections of revenue for Doorage, Sandona denied 

Doorage had documents containing those projections (See Ex. G at p. 39 - 41). 

Following the deposition of Sandona, Defendant issued its 4th Rule 37 letter (Ex. H)

outlining the documents it believed had been withheld based on the deposition testimony. 

At the same time, Defendant issued subpoenas to eleven non-parties.4 Only one of the 

subpoenaed parties provided a response, Samuel Lubeck. (See Ex. I). Lubeck’s response 

provided the Defendant with two pitch decks prepared by Doorage that contained not only 

relevant company revenue information, but financial projections for 2018 -2021. (Ex. I).

The discovery of these documents was alarming to Defendant, and a 5th Rule 37 

letter was immediately sent to Plaintiff’s counsel, attaching the documents obtained from 

Lubeck and demanding, again, that discovery be supplemented with complete responses. 

(Ex. K). Out of concern that additional documents such as those received from Lubeck were 

being withheld, Defendant filed its Motion to Compel. (Doc. 141). The Court struck the 

Motion to Compel based upon Rule 37.2 (simply attaching Rule 37 letters did not suffice) 

but referred the matter for further discovery proceedings before Magistrate Judge Harjani

(Minute Entry No. 142).

Following the 5th Rule 37 Letter, the Motion to Compel, and referral for additional 

proceedings on discovery, only then, with knowledge that defense counsel had become 

aware of the pitch decks, did Plaintiff provide yet another disclosure on July 28, 2023.

4 To date, only one of the eleven non-parties subpoenaed has responded to Defendant’s subpoenas. A Motion 

to Compel responses to these subpoenas is being filed contemporaneous to this motion. 

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 6 of 16 PageID #:1409
{46547.00001 / W1728096} 7

Shockingly, Plaintiff’s supplemental document production contained an additional 7,050 

pages of documents and 204 spreadsheets or PowerPoints, all responsive to requests for 

production dating back to 2020. (Ex. L). The materials produced by Plaintiff included, 

among other relevant items, multiple projections for future revenue predating litigation,

business plans predating litigation, communications regarding Blue Crates, a listing of all 

financial transactions from 2017 – 2022, Board of Directors reports, thousands of emails 

related to marketing efforts and reports during 2018 and 2019, additional non-specific 

financial information that requires further discovery and/or depositions, and other 

information relevant to proving or disproving the fantastical damages claim in this case. 

The disclosure of extensive and highly relevant documents only after Defendant 

filed its Motion to Compel and demonstrated it was aware that certain documents did exist, 

like the pitch deck with financial projections, demonstrates the egregious violation of the 

discovery process and withholding of documents. Accordingly, as discussed further below, 

dismissal and others sanctions under Fed. R. Civ. P. Rule 37 are entirely appropriate. 

III. Argument for Sanctions for Failure to Comply with Discovery

A. The Court’s Inherent Power to Sanction Discovery Abuse

The power of a district court to issue discovery sanctions extends to “default 

judgments against defendants as well as to dismissals against plaintiffs.” Secrease v. 

Western & Southern Life Ins. Co., 800 F.3d 397, 402 (7th Cir. 2015). This power “should be 

used only when there is a record of delay [or] contumacious conduct.... In deciding what 

measure of sanctions to impose, the district court should consider the egregiousness of the 

conduct in question in relation to all aspects of the judicial process.” Greviskes v. University 

Research Ass’n, Inc.,, 417 F.3d 752 at 759 (7th Cir. 2005) (citation omitted). 

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 7 of 16 PageID #:1410
{46547.00001 / W1728096} 8

Federal Rule of Civil Procedure 37 sets forth procedures for enforcing discovery and 

sanctioning misconduct. If a party fails to produce documents under Rule 34, a court may 

make such orders regarding the failure as are just. Fed. R. Civ. P. 37(d). If a court grants a 

motion made under Federal Rule of Civil Procedure 37(d), it has broad discretion to impose 

sanctions, including an order: (A) designating certain facts be taken as established; (B) 

baring the disobedient party from introducing evidence or claims; and (C) striking 

pleadings, staying the litigation until the obligation is satisfied, dismissing the action, or of 

default. Fed. R. Civ. P. 37(d) (emphasis added). The court may also award reasonable 

expenses, including attorney's fees, against the party failing to act, unless the court finds 

that the failure was substantially justified, or that other circumstances make an award of 

expenses unjust. Fed. R. Civ. P. 37(d).

Here, there is a clear record of delay, withholding of documents, and/or the failure 

to properly investigate in response to Defendant’s Rule 34 discovery and Rule 37 efforts to 

obtain compliance with discovery. All of which has resulted in compromising the integrity 

of the litigation process in this matter, and eroded the faith the defense and the Court can 

possibly have that Plaintiff has provided all relevant information and documents requested 

in this matter. As discussed, these actions require sanctions and dismissal is not an 

unreasonable sanction. 

B. Withholding of Discovery and/or Failure to Reasonably Investigate Completeness of 

Responses

Plaintiff clearly withheld relevant documents or failed to reasonably investigate 

whether responses to Defendant's discovery requests were complete. The Federal Rules of 

Civil Procedure make clear that “[p]arties may obtain discovery regarding any 

nonprivileged matter that is relevant to any party's claim or defense and proportional to 

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 8 of 16 PageID #:1411
{46547.00001 / W1728096} 9

the needs of the case.” Fed. R. Civ. P. 26(b)(1). “Evidence is relevant in a discovery context if 

it is relevant to the subject matter of the litigation as Rule 26(b)(1) states, not just the 

particular issues presented in the pleadings.” Eggleston v. Chi. Journeymen Plumbers’ Local 

Union No. 130, U.A., 657 F.2d 890, 903 (7th Cir. 1981).

Although the burden of demonstrating relevance is on the party seeking discovery, 

once relevance has been shown, it is the objecting party's obligation “to show why a 

particular discovery request is improper.” Sandoval v. Bridge Terminal Trans., Inc., No. 14-

CV-639, 2015 WL 3650644, at *1 (E.D. Wis. June 10, 2015). Further, “[a] party has a duty to 

reasonably investigate whether responses to an opposing party's discovery responses are 

complete.” Malibu Media v, Tashiro, 2015 WL 2371597, at *22 (S.D. IN. 2015). “When a 

party fails to fulfill” its obligation to “complete a reasonable investigation when presented 

with the opposing party's interrogatories and document requests,” the Court “may use its 

inherent power to enter appropriate sanctions.” Id.

Here, sanctions are clearly appropriate for withholding highly relevant documents, 

or failing to reasonably investigate whether responses to Defendant’s discovery were 

complete regarding highly relevant categories of discovery. Indeed, there can be no doubt 

that the documents withheld until July 28, 2023, were always relevant to the litigation and 

responsive to the categories of discovery sought by the Defendant. Indeed, the instances of 

withholding of discovery and/or failure to investigate in this action are copious. For ease, a 

summary of some of the violations is presented in the table below. 

Category of Documents

Requested 2020 and 2023

Withheld or not Investigated until July 2023

Bates Label DOORAGE – 002768-009817 and

Unlabeled Spreadsheets

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 9 of 16 PageID #:1412
{46547.00001 / W1728096} 10

Records related to Plaintiff’s 

Revenue – Ex. A.

- Relevant Spreadsheets on Revenue Contained in 

Ex. __; for examples sheets labeled: Corporate 

Overhead Costs; Financial Summary Months; 

Itemized Payouts; Launch Expenses; Monthly Cash 

Flow Projections; Outstanding Balances Book; and 

Market Overhead Costs.

- All Doorage transactions from 2017 – present 

(009722-009817)

Documents related to damages

claim – Ex. A

And Deposition Transcript Ex. 

G.

- Unbates Labeled Spreadsheets in Ex L: 4 Year 

Model; Asset Inventory; Pitch decks; forecasts.

- 2017 Business Plan with projections (008992)

- 2018 Business Plan with projections (009028)

- Updated 2018 Business Plan with projections and 

Pitch Deck with projections included. 

Documents in anyway Related 

to Blue Crates Ex. A.

- Emails from Doorage discussing Blue Crates as a 

competitor or use of Blue Crates as a search term 

in add campaigns. (002768; 005793).

Financial Statements, balance 

sheets, income statements –

Ex. A, D, and E

- All Doorage transactions from 2017 – present 

(009722-009817)

- Unlabeled Financial Spreadsheets in Ex. L

Investor Reports and Board

Reports – Ex. A, D, and E.

- Investor Reports (008800-008815)

- Business Plans (previously referenced)

Doorage’s projections for 

future revenue – Ex. A, D, and 

E.

- Unbates Labeled Spreadsheets contained in Ex L: 4 

Year Model; Asset Inventory; Pitch decks; Sales 

forecasts.

- 2017 Business Plan with four year projections 

(008992)

- 2018 Business Plan with four year projections 

(009028)

- Updated 2018 Business Plan with four year 

projections and Pitch Deck with projections 

included. 

Documents used to calculate 

damages claim – Ex. A, D, and 

E.

- Still not provided. Or some versions of projections 

and spreadsheets containing projections outlined 

above that require explanation that could not be 

provided at deposition because not produced in 

advance of deposition. 

Documents related to Search 

Engine Marketing and revenue 

– Ex. A, D, and E.

- Emails with Web design, Web Marketing firms 

from 2017 – present detailing what marketing 

campaigns were being used and were effective as 

well as marketing metrics relevant to effects 

Defendant’s infringing video may have had on 

Plaintiff’s marketing: (002768-008799)

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 10 of 16 PageID #:1413
{46547.00001 / W1728096} 11

As shown, documents clearly relevant to Plaintiff’s damages claim such as: business 

plans, sales spreadsheets, itemized expenses, pitch decks and revenue projections prepared 

by Sandona, board meetings, as well as correspondence referring to “Blue Crates,” 

communications related to digital marketing, increases and decreases in customer 

conversion contained in marketing correspondence, and revenues, were all either withheld

by Plaintiff or demonstrate a total failure to adequately investigate the completeness of 

discovery since 2020. Indeed, there can be no question that the classes of discovery 

discussed above and the disclosures themselves are all relevant to damages in litigation 

where Plaintiff brazenly claims every dollar Plaintiff fell short of projected earnings is

attributable to the Defendant.

Further support for the relevance of the withheld projections and early revenues 

can be taken from Sandona’s deposition testimony, where Sandona confirmed that the 

damages calculations referenced in Plaintiff’s Motion for Summary Judgment (See again, Ex. 

N and O) were based on revenue projections. (See Ex G at p 178-185). Again, there can be 

no doubt that Plaintiff was aware the revenue projections and early company financial data 

was directly relevant to the damages claim being made by Plaintiff as early 2020. 

Regardless, these projections and supporting information were withheld.

Significantly, these highly relevant documents were delivered only after Plaintiff’s 

deposition, a Motion for Summary Judgment was briefed (now ruled on), a Motion to 

Compel was filed by Defendant, Defendant’s five Rule 37 letters (since 2020), and only 

after Defendant discovered that these relevant documents likely did exist by obtaining 

pitch decks with projections from a non-party, leaving one to wonder if Defendant had 

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 11 of 16 PageID #:1414
{46547.00001 / W1728096} 12

not discovered the decks and projections through non-party subpoenas if the documents in 

Ex. L would have ever been disclosed.

This pattern of withholding relevant documents, or at the very least the failure to 

reasonably investigate whether responses were complete, is an egregious abuse of the 

discovery process, has wasted the court’s time, wasted the Defendant’s time and resources,

and created an extraordinary delay that will cause the Defendant to revisit all previous 

discovery, defenses, review of damages, reconvene Plaintiff’s deposition, and revisit

subpoenas (see Motion to Compel subpoenas filed contemporaneously to this motion). 

Worse, it leaves the question of “what else is missing?” open and unanswerable, tainting 

the litigation process to the point that Plaintiff’s discovery responses cannot be relied upon

to be complete going forward and sanctions are appropriate.

C. Magnitude of Appropriate Sanction 

Plaintiff’s willful and intentional course of withholding discovery or failing to 

investigate are sanctionable are each sanctionable by dismissal. “[A] court has the inherent 

authority to manage judicial proceedings and to regulate the conduct of those appearing 

before it, and pursuant to that authority may impose appropriate sanctions to penalize and 

discourage misconduct.” Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 776 (7th Cir. 2016). A 

court must find by a preponderance of the evidence that the responsible party acted (or 

failed to act) “with a degree of culpability that exceeds simple inadvertence or mistake 

before it may choose dismissal as a sanction for discovery violations.” Id. at 776, 778. “A 

district court may dismiss a case as a sanction for discovery abuse if it finds that the party's 

actions displayed willfulness, bad faith, or fault, and if dismissal would be a proportionate 

response to the circumstances.” Watkins v. Nielsen, 405 Fed. App'x 42, 44 (7th Cir. 2010). 

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 12 of 16 PageID #:1415
{46547.00001 / W1728096} 13

“Fault, in contrast to willfulness or bad faith, does not require a showing of intent, but 

presumes that the sanctioned party was guilty of ‘extraordinarily poor judgment’ or ‘gross 

negligence’ rather than mere ‘mistake or carelessness.’” Ramirez, 845 F.3d at 776. Finally, 

the magnitude of a sanction of dismissal in a civil case involving money is less serious than 

dismissal where one's liberty interests are at stake. Id.

When considering whether to dismiss an action as a sanction under Rule 37, the 

court should consider: “(1) the willfulness of the non-compliant party, bad faith, or fault; 

(2) the efficacy of lesser sanctions; (3) the prejudice to the other party; (4) the duration of 

the period of noncompliance, and (5) whether the non-compliant party had been warned of 

the consequences of his non-compliance.” United Consumers Club, Inc. v. Prime Time Mktg. 

Mgmt. Inc., 271 F.R.D. 487, 502 (N.D. Ind. 2010). Here, dismissal is appropriate.

First, Plaintiff is clearly at fault for failure to provide responses to discovery 

requests made under Rule 34 dating back to 2020. Plaintiff either withheld documents 

relevant to discovery, or failed to reasonably investigate the completeness of its responses, 

even after multiple requests for documents relevant to Plaintiff’s marketing efforts and any 

evidence that relevant to its absurd damages claim. However, it was not until after

Plaintiff’s deposition, a Motion for Summary Judgment, a Motion to Compel, Defendant’s 

five Rule 37 letters (since 2020), and after a non-party provided evidence that pitch decks 

and projects did in fact exist, that Plaintiff provided a more complete disclosure of relevant 

documents. Arguably, this course of conduct demonstrates a willfulness to withhold 

documents. At the very least it is clearly fault, demonstrating poor judgment or negligence 

in Plaintiff’s reluctance to provide relevant information.

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 13 of 16 PageID #:1416
{46547.00001 / W1728096} 14

Second, while lesser sanctions than dismissal are of course available, their efficacy is 

in doubt. Quite simply, the Plaintiff’s neglect or willful withholding of relevant documents 

until after Plaintiff’s deposition, a Motion for Summary Judgment, a Motion to Compel, 

Defendant’s five Rule 37 letters (since 2020), and after a non-party provided evidence that 

pitch decks and revenue projections did in fact exist, puts the entire discovery process and 

this litigation under a cloud of uncertainty. Based on this conduct, there will always be a 

question whether additional relevant documents are being withheld or simply still not 

properly sought in response to Defendant’s discovery requests. Because this cloud cannot 

be cleared, lesser sanctions are unlikely to cure the damage done by Plaintiff’s actions. 

Third, the prejudice to Defendant is obvious. Even setting aside the question of 

reliability of the completeness of disclosures, Defendant must now reevaluate its theories 

of the case after this case has been pending for years. Must reinitiate Sean Sandon’s 

deposition, piece together how these newly discovered documents fit the puzzle that is the 

Plaintiff’s damage claim, and determine if anything outside of non-existent yellow pads, 

back of napkins, or just Mr. Sandona’s projections in his “numbers noggin,” are of use in 

defending the outrageous damages claim. All this must be conducted AFTER a finding of 

liability on summary judgment, that was briefed before Defendant had an opportunity to 

fully evaluate the withheld documents disclosed on July 28, 2023. The prejudice is clear. 

Fourth, Defendant’s original Rule 34 requests for production were delivered to 

Plaintiff in June 2020. The case was pending for more than a year before it was placed in a 

bankruptcy stay from April 2021 through February 2023. During the stay, Plaintiff 

remained active in its pursuit of the defendant through participation in the bankruptcy 

action and filing a DEC action against the Defendant’s insurer. Following the lifting of the 

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 14 of 16 PageID #:1417
{46547.00001 / W1728096} 15

stay, Defendant immediately sought supplementation of discovery. And, as described 

multiple times above, Plaintiff continued to withhold production of relevant documents. 

Further, it is unreasonable to argue that Plaintiff was unaware of the documents produced 

in the July 28, 2023 disclosure. Because most of the documents withheld until July 28, 

2023, were clearly available to the Plaintiff from the first submission of discovery in June 

2020, the length of delay has been significant.

Fifth, Plaintiff was provided with extensive warnings regarding the need to comply 

with the discovery process via five detailed Rule 37 letters from Defendant to Plaintiff. 

(Exhibits B, C, F, I, L). However, no direct Court warnings were given to Plaintiff regarding 

compliance with discovery because Defendant attempted to work out the matter via Rule 

37 letters and phone calls, Defendant was told the documents didn’t exist, and Defendant 

relied upon Plaintiff’ representations (until it found out that the documents did exist). Once 

Defendant discovered that relevant evidence besides discarded yellow notepads did in fact 

exist, it sought Court intervention. Plaintiff, realizing that it had been caught, made an effort 

to comply with discovery. However, as outlined throughout this motion, these efforts were 

far too late to be considered reasonable.

Accordingly, dismissal and an award of attorneys’ fees is clearly appropriate. 

IV. Conclusion

WHEREFORE, Defendant Blue Crates, LLC, respectfully requests that this court find 

that sanctions against the Plaintiff are appropriate under Rule 37(d) and enter an Order

awarding Defendant its fees for pursuit of the withheld documents and the filing of this 

motion, dismiss the case with prejudice, and any other relief the court deems appropriate 

as sanctions against the Plaintiff. 

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 15 of 16 PageID #:1418
{46547.00001 / W1728096} 16

Respectfully submitted, 

Maron Marvel Bradley Anderson & Tardy LLC

By: /s/ Robert Petti

Dan Alexander, ARDC #6308464

Robert Petti, ARDC #6294744

191 N. Wacker Drive – Suite 2950

Chicago, Illinois 60606

(312) 579-2021

dalexander@maronmarvel.com

rpetti@maronmarvel.com

Attorneys for Blue Crates, LLC

Case: 1:20-cv-00421 Document #: 153 Filed: 10/10/23 Page 16 of 16 PageID #:1419