TOM SCHANZIE-HASKINS, Magistrate Judge.
This matter comes before the Court on Defendant GoDaddy Operating Company, LLC's (GoDaddy) Motion to Compel (d/e 14) (Motion). For the reasons set forth below, the Motion is ALLOWED in part.
Plaintiff The Easy Life LLC (Easy Life) brings this action against GoDaddy for allegedly infringing on Easy Life's allegedly trademarked phrase, "It's Go Time." Easy Life does business as the website GoWeb1.com. Easy Life alleges that Easy Life and GoDaddy both engage in Internet web design, website hosting and related services. Easy Life alleges that it began using the phrase "It's Go Time" as a trademark for its services in 2011. Easy Life did not seek to register its trademark. GoDaddy started using the same phrase "It's Go Time" as a marketing phrase in 2013. GoDaddy has filed an application to register a trademark in "It's Go Time." Easy Life is opposing the application. The application is pending. On February 3, 2015, Easy Life brought this action against GoDaddy for trademark infringement and unfair competition.
During discovery, GoDaddy served a set of interrogatories on Easy Life. Interrogatory No. 6 asked Easy Life:
GoDaddy also served a document request on Easy Life, including the following five requests (collectively Document Requests):
Counsel conferred to resolve their differences over Interrogatory No. 6 and the Document Requests without court action, but differences remain. GoDaddy has filed the Motion to compel full responses to Interrogatory No. 6 and the Document Requests, and in particular, to compel the identification of Easy Life customers. Easy Life objects to the disclosure of the identity of its customers.
Federal Rule of Civil Procedure 26(b)(1) allows parties to obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party. Relevant information need not be admissible at trial if the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). District courts have broad discretion in matters relating to discovery.
The Court may, in its discretion, limit the frequency or extent of discovery if: the discovery is unreasonably cumulative or duplicative, or can be secured from a more convenient and less expensive source; the party seeking discovery has had ample opportunity to conduct discovery; or if the burdens of the proposed discovery outweighs the benefits. Fed. R. Civ. P. 26(b)(2)(C). The party opposing discovery has the burden of proving that the requested discovery should be disallowed.
Easy Life objects to disclosing information about its customers on the grounds that (1) the information is not relevant and (2) the request is "overbroad, unduly burdensome, vexatious and harassing." The Court addresses each objection below.
After careful consideration, the Court overrules the relevance objection. The identity of Easy Life's customers is information that is reasonably calculated to lead to relevant evidence. Easy Life alleges a common law trademark right to "It's Go Time." To establish this element of its claim, Easy Life must demonstrate the term "It's Go Time" has a secondary meaning in the relevant market such that consumers in that market associate the phrase "It's Go Time" with Easy Life's products and services.
The relevant market is defined, in part, by geographic location.
Easy Life's claim of infringement also puts at issue whether GoDaddy's use of "It's Go Time" creates actual confusion in the relevant market.
Easy Life cites a number of District Court decisions and Trademark Trial and Appeal Board (TTAB) opinions that hold that customer lists are not relevant to trademark infringement and unfair competition claims.
The Court respectfully disagrees with these decisions. Statements from actual customers would not necessarily be hearsay. A party could subpoena the customers to testify at trial. The testimony of a customer about his perception would not be hearsay. In addition, an expert witness may, in appropriate circumstances, base his expert testimony on survey data taken from customers even though the survey data may be hearsay. Fed. R. Evid. 703. The identity of customers could lead to admissible evidence.
Evidence about classes of customers generally may or may not be more probative on some issues, but evidence about actual customers may still be relevant. Both types of evidence may be reasonably calculated to lead to admissible evidence. The federal discovery rules are to be construed broadly and liberally.
The Court allows the objections of undue burden, vexation, and harassment in part. The risk of a burden on Easy Life and its customers is real and significant. A customer contacted by GoDaddy will incur costs to respond to GoDaddy's inquiry. The costs may range from less than a minute to answer a phone call, to several hours to sit for an interview, to a day or more to testify at a deposition, to additional days to testify at trial. Subpoenaed customers may need to hire an attorney to represent them at depositions or at trial. These costs are real, and customers may take their business elsewhere just to avoid any involvement in this litigation.
Easy Life, however, brought this action. It alleges a common law trade mark in a relevant market; it alleges infringement; it alleges actual confusion. GoDaddy is allowed to use discovery to probe the relevant information on these issues. Easy Life speculates that GoDaddy wants to tortiously interfere with Easy Life's business relationship with its customers.
The Court recognizes that Easy Life's position is supported by contrary persuasive authority.
The Court orders Easy Life to answer Interrogatory No. 6 fully and to produce the documents responsive to the Document Requests (collectively the Compelled Responses) by October 5, 2015. The Compelled Responses shall be treated as Highly Confidential under the Stipulation and Protective Order (d/e 10-1) adopted by this Court pursuant to Text Order entered May 6, 2015.
THEREFORE, Defendant GoDaddy Operating Company, LLC's Motion to Compel (d/e 14) is ALLOWED in part.