UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
|THE TAUBMAN COMPANY
|Civil Action No. 01-72987
|District Judge Zatkoff
|WEBFEATS and HENRY MISHKOFF,
|Magistrate Judge Komives
MEMORANDUM IN SUPPORT OF
MOTION TO DEFER TRIAL
TO PERMIT FURTHER DISCOVERY
Defendants have moved the Court to postpone the trial on the merits in this case to permit
them enough time to conduct discovery on the copyright claims, for the following reasons:
The trial in this case, which originally contained only trademark claims, was originally
scheduled to be held in August, 2002. When the Court granted plaintiff's motion to amend the
complaint to add a copyright claim to the complaint as Count IV, it rescheduled the trial for October,
2002, and allowed approximately forty-five days for discovery. Mishkoff promptly served a set of
interrogatories and requests for documents, with a view to taking depositions based on the answers
and documents produced in response to those requests.
Plaintiff did not send its responses to Mishkoff's counsel until only two weeks remained
before the expiration of discovery; the responses were evasive and incomplete; and the one document
that was produced was not furnished until a few days before the discovery deadline. Mishkoff
promptly moved to compel further answers and asked the Court either to impose sanctions for
incomplete and evasive responses, or to bifurcate the trial in this matter and set the copyright claim
down for trial separately from the trial on the trademark issues.
By order dated June 13,2002, the Court indicated that, for reasons of judicial economy,
it was not inclined to hold two separate trials, but directed Mishkoff to separate his motion to delay
trial from his motion to compel further discovery. In effect, this order made clear to Mishkoff that,
if he needed more time to prepare for trial on the copyright claims, he would have to be prepared to
defer trial on the trademark claims as well, thus potentially extending the effective date of the
preliminary injunction against the maintenance of his original "shopsatwillowbend" web site.
Mishkoff then filed a new motion to compel discovery on the copyright issues. By order
dated June 28, 2002, the Court referred that order to Magistrate Judge Komives for disposition.
Mishkoff now moves to defer the trial on the merits to permit him to take the discovery
he needs on the copyright issue. Recognizing that plaintiff has two weeks to respond to the pending
motion to compel, it seems unlikely that Magistrate Judge Komives will be able to rule on the pending
motion before late July. Assuming that Magistrate Judge Komives orders further responses to written
discovery, Mishkoff will not have received such responses until the middle of August at the earliest,
and will not be able to take depositions to pursue the information provided in such responses until
mid- to late September.
Accordingly, the Court is requested to set a schedule requiring that Mishkoff's discovery
on the copyright matters be concluded by the end of September; that dispositive motions be filed by
the end of October; and that trial be held during February, 2003.
The schedule that is being suggested will also accommodate the problem that, in light of
the original trial setting for August, 2002, defendant Mishkoff scheduled a vacation outside the
United States in October, and purchased non-refundable airline tickets for that vacation. The Court
was apprised of this scheduling problem as soon as counsel received the new trial schedule.
Mishkoff's counsel has attempted to consult with Taubman's counsel, Julie Greenberg,
about conflicts with the proposed dates. Ms. Greenberg refused to respond to the request for such
The motion to reschedule the trial should be granted.
Barbara Harvey (P25478)
Detroit, Michigan 48226
Paul Alan Levy (DC Bar 946400)
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
Attorneys for Defendants
July 7, 2002