27Republic Technologies (NA), LLC v. BBK Tobacco & Foods, LLP, No. 16 CV 3401, Slip Op. (N.D. Ill. Nov. 20, 2018) (Schenkier, Mag. J.).

Magistrate Judge Schenkier denied plaintiffs’ (collectively “Republic Tobacco”) Fed. R. Civ. P. 37 sanctions motion based upon defendants’ (collectively “HBI”) alleged improper identification of the source of rolling papers and tobacco products sold by HBI in this Lanham Act false advertising case involving organic hemp tobacco rolling papers.

During discovery and, eventually, pursuant to a Court order, HBI repeatedly confirmed that its only supplier of organic hemp rolling papers was SWM. HBI produced no documents and made no statements disputing those statements. During summary judgment briefing, however, HBI pointed to statements by a Republic Tobacco witness and a Republic Tobacco internal email stating Republic Tobacco’s belief that HBI used another supplier, Delfort, for its papers from 2009 through 2011 in order to create a question of material fact. Because HBI did not produce a document or supplement statement contradicting its statement about SWM being its sole supplier and only relied upon Republic Tobacco discovery that Republic Tobacco timely produced and was aware of, there was no basis for discovery sanctions.

Having denied sanctions, the Court noted that HBI’s summary judgment tactics were “peculiar” and “too cute by half.” But those issues were best resolved as part of the summary judgment analysis, not in the instant sanctions motion.