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Kashlan v. TCBY Systems

November 6, 2007


The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge


Before the Court is a Motion to Compel filed by Defendant TCBY Systems, LLC, and TCBY of Jordan, Inc. (collectively, "TCBY" or "the TCBY Defendants"). Plaintiff Osman Kashlan has responded to the motion. Additionally, TCBY has filed a reply brief. For the reasons stated below, the Court concludes that the motion is granted except with regard to the Kashlan Foods' request. The Court further concludes that TCBY has been denied discovery to which it is clearly entitled, that Kashlan was not justified in withholding said discovery, and that costs, including attorney's fees, shall be assessed against Kashlan's counsel.


On April 20, 2006, Kashlan filed his Complaint in this Court. The Complaint contains two counts: (1) Declaratory Judgment; and (2) Breach of Contract and Breach of the Implied Covenant of Good Faith and Fair Dealing. Kashlan and TCBY of Jordan entered into a Transnational Master Franchise Agreement (the "TMFA") that allowed Kashlan to develop and subfranchise TCBY franchises in Syria and Jordan. Kashlan contends that TCBY breached and improperly terminated the TMFA in September of 2005.

On May 30, 2006, the TCBY Defendants filed their Answer and Counterclaim. The Counterclaim asserts the following causes of action: (1) Breach of Contract; (2) Trademark Infringement; (3) Trade Dress Infringement; (4) Dilution of Marks and Trade Name; (5) Acts of Unfair Competition; and (6) Declaratory Judgment. Defendants contend that Kashlan breached his obligations under the TMFA, including his post-termination obligations (e.g., the cessation of use of TCBY Marks, and the marketing and sale of TCBY Yogurt or other TCBY products), following the termination of the TMFA on September 26, 2005.*fn1

On August 22, 2007, the TCBY Defendants filed the instant Motion to Compel. Therein, the TCBY Defendants request a Court Order: (1) compelling Kashlan to respond to TCBY of Jordan's First Set of Interrogatories; (2) compelling Kashan to produce documents responsive to TCBY of Jordan's First Set of Requests for Documents; (3) imposing sanctions against Kashlan; (4) striking Kashlan's affirmative defenses; and (5) granting leave to amend the Scheduling Order of September 21, 2006. Since the filing of the motion to compel, the Court has amended the Scheduling Order at the joint request of the parties. Thus, that portion of the motion is moot, although it does appear that the discovery deadlines in this case were required to be extended, at least in large part, due to Kashlan's delay in responding to TCBY's written discovery.


The TCBY Defendants served discovery requests on Plaintiff in December 2006. Plaintiff submitted responses to said requests, interrogatories and requests for production, on April 20, 2007. The parties agreed to extensions of time for this delay and thus, Plaintiff's initial responses were timely filed.*fn2

Plaintiff Kashlan did not provide any documents with his responses. Instead, he stated that responsive documents "shall be produced."

On June 21, 2007, counsel for the TCBY Defendants wrote to Kashlan's counsel, indicating that he continued to await Kashlan's responsive production of documents. TCBY's counsel also requested that Kashlan's counsel contact him concerning the timing of such production. Finally, the letter identified alleged inadequacies with Kashlan's discovery responses and requested supplementation or clarification.

The record indicates that Kashlan's counsel made no effort to respond to TCBY counsel's June 21st letter, despite follow-up phone calls from TCBY's counsel in an effort to speak with Kashlan's counsel, until the time the motion to compel was filed on August 22, 2007. Kashlan's counsel does not dispute that he made no effort to contact TCBY's counsel during this two-month period. Nor does he offer any reason for his conduct.

Kashlan did not produce one responsive document until August 29, 2007, one week after the motion to compel was filed.


The Local Rules of the Eastern and Western Districts of Arkansas require that parties confer in good faith and attempt to resolve all discovery issues prior to involving the Court. Local Rule 7.2(g) requires that any motion to compel include a statement indicating that the parties have so conferred. Local Rule 7.2(g) serves the very practical purpose of not interjecting courts unnecessarily or prematurely into discovery disputes.

The motion papers indicate that Kashlan's counsel ignored the efforts of TCBY's counsel to engage in discussions about discovery. Of course, parties can not confer ...

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