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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

ALBERT’S DIAMOND JEWELERS, INC.,

Plaintiff, Civil Action No: 2:23-cv-39

JURY TRIAL DEMANDED

v.

AALAND DIAMOND JEWELERS LLC,

Defendant.

ALBERT’S DIAMOND JEWELERS, INC.’S OPPOSITION

TO MOTION TO BIFURCATE

I. INTRODUCTION

This case does not warrant bifurcation of liability and damages. Bifurcation will

complicate this case, delay resolution, impede meaningful ADR, and create the very real

likelihood of multiple fact and expert discovery phases - not to mention two separate trials. Given

the interrelation of liability and damages issues in a case such as this, moreover, attempting to

compartmentalize damages discovery from that relating to liability will be complicated at best

and anything but streamlined. It will lead to disputes and motions practice that will otherwise

not be necessary without bifurcation.

Contrary to Defendant Aaland Diamond Jewelers LLC’s (“Aaland”) claims, bifurcation

does stand to prejudice Plaintiff Albert’s Diamond Jewelers, Inc. (“Albert’s”). As the Court

knows from the Complaint, the crux of Albert’s claims in this case is Aaland’s improper adoption

of a logo that has and is causing consumer confusion. The timing of Aaland’s adoption and use

of that logo, in view of, for example, its sales, stands to shed light on Aaland’s actions, its

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intentions and motivation for adopting the logo, and related issues beyond just those relating to

“damages.” But were the Court to order bifurcation, Aaland would no doubt seek to avoid

providing any financial or sales documentation to Albert’s during liability phase discovery. Not

only would this stand to prejudice Albert’s prosecution of the case, but it would prevent

meaningful ADR and create significant inefficiencies in resolving this dispute.

Finally, Aaland negotiated and agreed to a discovery plan and case schedule several months

ago. As part of the Court-ordered Rule 16 case planning process, it actively engaged in schedule

and logistics planning for this case, with full knowledge of Albert’s claims. It specifically noted

“damages” discovery would be part of the discovery process in this case. It went so far as to

insist on entry of a protective order to protect sensitive documents and information including

sales and financial documents.

At no time throughout that process, however, did Aaland include or even suggest

bifurcation, severance, or anything similar – not in the drafts of the report, and certainly not in

the final version that was eventually filed and relied on by this Court. Instead, it agreed to a

schedule that calls for one fact discovery period, one expert discovery period, related deadlines

– and one five day trial. Albert’s has relied on that agreed schedule and process, and has

expended significant time and resources to timely advance this case.

But now, already past-due in providing responses to discovery requests that Albert’s served

on it over two months ago, it seeks to avoid at least “damages” discovery by arguing that this

case is “complex” and somehow appropriate for bifurcation. The instant Motion appears less as

a serious attempt to create case efficiencies, and more an attempt to avoid and put off for much

later at least some aspects of fact and expert discovery – all of which will delay resolution of this

dispute and prevent meaningful ADR. The Court should deny the Motion.

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II. BIFURCATION IS NOT APPROPRIATE IN THIS CASE

In the Seventh Circuit, a court employs a three-step test for determining whether to

bifurcate: (1) first, the court must determine whether separate trials would avoid prejudice to a

party or promote judicial economy; (2) second, the court must be satisfied that the decision to

bifurcate does not unfairly prejudice the non-moving party; and (3) finally, separate trials must

not be granted if doing so would violate the Seventh Amendment. Houseman v. U.S. Aviation

Underwriters, 171 F.3d 1117, 1121 (7th Cir. 1999) (internal citations omitted). The party seeking

bifurcation bears the burden of proving that bifurcation is warranted. Real v. Bunn-O-Matic

Corp., 195 F.R.D. 618, 620 (N.D. Ill. 2000).

Trial courts should "balance considerations of convenience, economy, expedition, and

prejudice, depending on the peculiar facts and circumstances of each case." Houskins v. Sheahan,

549 F.3d 480, 495 (7th Cir. 2008). The decision of whether to bifurcate rests with the discretion

of the trial court. Krocka v. City of Chi., 203 F.3d 507, 516 (7th Cir. 2000).

A. Judge Van Bokkelen Addressed A Similar Motion In a Similar Case.

Importantly, the Court has available an informative, relatively recent example of how a

bifurcation motion in a trademark related case such as this is assessed. The same type of motion

was brought in a case with similar Lanham Act and related state and common law claims at issue,

where similar arguments were made in requesting bifurcation. Texas Roadhouse, Inc. v. Texas

Corral Rests., Inc., No. 2:16-CV-28 JVB, dkt. 230 (N.D. Ind. Jun. 5, 2017) (in which the plaintiff

asserted federal trademark claims under the Lanham Act as well as similar state law claims under

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Michigan and Indiana law as well as common law)1 (attached as Exhibit 1.) There, Judge Van

Bokkelen analyzed the applicable Seventh Circuit test, and denied bifurcation. Id. at pp. 3-5.

The Judge was not persuaded that bifurcation was warranted despite facts that were arguably

more conducive to bifurcation there than in the instant case. See id.

While the Court is to assess the specific facts and circumstances in the instant case in

deciding the motion for bifurcation, Judge Van Bokkelen’s decision is instructive. As noted in

more detail below, the same result should apply here.

B. Bifurcation Will Neither Avoid Prejudice to Aaland Nor Promote Judicial

Economy

1. Aaland’s Arguments Of Prejudice Here Are No More Persuasive Than

In Texas Roadhouse

Aaland here makes many of the same arguments of supposed prejudice, as did the moving

defendant in Judge Van Bokkelen’s Texas Roadhouse case. In assessing the motion in that case,

Judge Van Bokkelen detailed those arguments. Specifically:

− That the plaintiffs “claim multiple and alternative theories for

damages.” Id. at p. 3;

− That “the damages issues are complex, and that addressing and
resolving the issue of liability first will either render the damages
issues moot or narrowed. Defendants claim they (and Plaintiffs and
the Court) will save substantial time ‘by bypassing speculative and
complex damages calculations’ (DE 121 at 2) and addressing
damages in a focused manner, if at all, only after resolution of
liability.” Id.;

− “Defendants claim resolution of the damages issue will require

separate evidence and, likely, experts.” Id.;

− “Defendants also claim that discovery regarding damages before

resolution of liability will delay resolution of liability, including a
delay of potential dispositive motions.” Id.;

1
Aaland counsel here, David Woodward, was counsel of record for the defendant seeking
bifurcation in that case as well. (See id., non-document appearance filed 6/17/14.)

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− “Defendants also claim prejudice in the form of jury confusion

absent bifurcation.” Id.; and

− “Finally, Defendants claim prejudice absent bifurcation in the form

of potential irreparable harm if they have to disclose confidential
financial information to their competitors.” Id.

None of these arguments were sufficient to bifurcate liability and damages. Id. at pp. 3-5.

Nevertheless, Aaland makes the same arguments here. (See, e.g, Def.s’ Mem. of Law in Support

(“Mem.”) at p. 3 (arguing Albert’s damages theories are “all-encompassing, reflecting all the

different theories that might be applicable…”), pp. 3-4 (arguing damages issues here are complex,

will require “separate evidence” and experts), p. 5 (arguing damages discovery will delay

resolution of liability), pp. 5-6 (arguing “near-certain jury confusion that will result” absent

bifurcation), p. 6 (arguing delayed resolution through dispositive motions absent bifurcation),

and pp. 6-7 (arguing a “substantial risk of irreparable harm” from disclosure of financial

information without bifurcation)).

Just as in the Texas Roadhouse case, these arguments do not carry Aaland’s burden.

Aaland attempts to cloud the relevant inquiry by attempting to paint a picture that this case is

somehow much more complex, will somehow involve much more discovery, and is somehow

much more complicated, than what it actually is. To be sure, Aaland seizes on the length of time

Albert’s has been in business, suggesting that discovery may be required going back 115+ years.

(See Mem. at p. 3.) It also notes that neither Party has a federal trademark registration, among

other things. (Id.) These are red herrings.

Aaland’s apparent expectations of the appropriate scope of discovery are misguided. How

Albert’s may have used trademarks say, 50 or 100 years ago, is of no moment given the

allegations at issue here. Similarly, that this case involves unregistered and not registered marks

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is irrelevant to the instant motion – the Lanham Act and other claims here specifically embody

registered and unregistered marks alike, even if specific points of proof may vary. Neither of

Aaland’s points support its claim that this case is somehow “complex.”

By comparison, the claims and defenses that were at issue in the Texas Roadhouse case –

where bifurcation was denied – were much more extensive and “complex.” There, not only did

the plaintiff assert federal claims for unregistered trademark infringement (for infringement of

unregistered trade dress), but it also asserted claims for federal registered trademark infringement,

state trademark infringement under both Michigan and Indiana law, common law trademark

infringement, unfair competition under both Michigan and Indiana law, and common law unfair

competition. (See Texas Roadhouse, No. 2:16-CV-28 JVB, at dkt. 1 (original complaint) and dkt.

7 (amended complaint).) It even asserted a separate federal claim for copyright infringement.

(Id.) But bifurcation was nevertheless not appropriate.

To be sure, Aaland’s self-serving arguments now ring hollow. Not only is this case

undeniably less complex than what was at issue in Texas Roadhouse (which was not appropriate

for bifurcation), but the claims and defenses at issue here (and the appropriate scope of discovery

related to them) were specifically defined and enumerated by both Parties in their submission to

this Court. (See “Report of Parties’ Planning Meeting” on March 30, 2023 (dkt. 18), at par. 3)

(“Joint Report”). As further addressed below, Aaland had an opportunity months ago to address

any desire or supposed need to bifurcate or otherwise stage discovery. It chose not to do so, until

now – by filing the instant motion and further delaying case progress rather than timely providing

discovery that Albert’s requested over two months ago.

At bottom here, even if some prejudice might be avoided by bifurcation, just like in Texas

Roadhouse, Aaland has “not shown that, absent bifurcation, they would suffer the kind of

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substantial, exceptional, extenuating prejudice which would justify bifurcation.” See Texas

Roadhouse at p. 4. Bifurcation was not appropriate in Texas Roadhouse, and it is not appropriate

here.

2. Bifurcation Will Create Discovery Disputes

Much like the moving defendant in the Texas Roadhouse case, Aaland as the moving party

here argues that “bifurcation of the liability trial from the damages trial will focus, if not

eliminate, much of the damage evidence and witnesses in this case where monetary damages are

unlikely.” (Mem. at p. 4). See Texas Roadhouse at p. 5 (noting defendant’s argument there that

“resolution of liability first will likely render resolution of damages unnecessary, or will at least

streamline and focus the remaining damages issues.”) Here, just as there, bifurcation will not

promote judicial economy despite what Aaland claims.

As the Judge accurately observed on this point in Texas Roadhouse, it was just as likely

“that bifurcation would result in further protracted discovery disputes, duplicative written

discovery, and depositions of the same witnesses twice.” Id. The same holds in this case. To be

sure, bifurcation here will lead to discovery disputes.

For one, it will not be a simple task to identify and separate discovery as between liability

and damages, as Aaland suggests. In a case such as this, these are not discrete, separate concepts

that can be easily separated. And bifurcation is properly denied where liability and damages are

not easily compartmentalized. Agrigenetics, Inc. v. Pioneer Hi-Bred Int'l Inc., NO. 1:08-cv-

00802-TWP-TAB, dkt. 260, at p. 2 (S.D. Ind. Dec. 16, 2010) (where court noted the overlap

between issues relating to liability and damages and creating challenges to separate liability and

damages) (attached as Exhibit 2.)

It is telling that Aaland has not specifically enumerated just what “discovery” it believes

should be excised and held for later. It makes passing reference to Albert’s Complaint and what

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it calls its “theories of monetary relief,” makes general reference to “customer confusion at

Defendant’s store, diverted sales from Plaintiff’s stores, and willfulness” in relation to what it

claims Albert’s will need to show to support a damages award, and notes that it will have defenses

relating to its profits and deductions. (Mem. at p. 4.) But to the extent that this recitation is even

accurate (it appears to over-generalize the anticipated proof that this case will entail), it fails to

acknowledge the significant overlap between issues (and proof) relating to both liability and

damages in a case such as this.

Here, as but one example, consider Albert’s allegation that Aaland adopted a trademark

that is confusingly similar to its mark. Albert’s suspects this was done intentionally, with purpose

to confuse and divert sales from Albert’s to Aaland. (See, e.g., Complaint, par. 6, 35-37, 40, 44,

48, 50.) Information regarding Aaland’s actions in considering and deciding on its offending

mark, its sales, and how each occurred over time, will bear on the issue. But no doubt at least

certain aspects of this kind of information – Aaland’s sales documentation, for example – is the

type of information that Aaland’s Motion seeks to put off for later. Doing so, however, would

not be appropriate as it would prejudice Albert’s. But to the extent that Aaland did so, a dispute

would arise.

But more to the point, Aaland’s seeking of bifurcation has already led to a discovery

dispute. Albert’s served initial discovery requests on Aaland on April 6, 2023. One day before

the responses were initially due, Aaland took what it represented then as a 21-day extension,

promising responses “no later than May 29, 2023.” But that day came and went, and rather than

providing any responses by that extension date, it chose instead to file the instant Motion – again,

further delaying discovery and this case while it seeks bifurcation and an order that would permit

it to avoid providing unspecified discovery until some even later date.

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Not until Albert’s challenged its continuing discovery delays, in fact, did Aaland promise

to provide responses. But it continued to stall. Most recently, when pressed by Albert’s again

on June 8, 2023 to provide responses, it replied that it needed more time still, first promising

responses by June 12th, and then pushing that date back again with its last promise to provide

responses by June 16th (the day the instant opposition was due for filing). When asked whether

that would include damages discovery, it failed to respond.2

Aaland’s failure to timely keep to the schedule that it negotiated and proposed to this Court

has already caused significant delay and led to a discovery dispute. Its continuing failure to

timely provide the discovery that Albert’s sought over two months ago, moreover, now stands to

require discovery motions practice. While the current case schedule may not yet be implicated,

further delay and complications from bifurcation threaten the parties’ ability to keep to it.

3. Bifurcation Will Protract This Case and Potentially Require Two

Trials

Accepting Aaland’s invitation to separate the liability and damages aspects of this case

would not only create the prospect of at least two separate fact and expert discovery periods, but

would also create the prospect of two trials – one on liability, and a second on damages. In Texas

Roadhouse, Judge Van Bokkelen recognized this as another risk, and reason again to deny

bifurcation. Texas Roadhouse at p. 5.

2
Late in the day June 15th - the day before the instant Opposition was due - Aaland finally
served responses to Albert’s discovery requests that it served over two months ago. While Albert’s
is reviewing those responses, they include objections to financial and related requests, asserting
those are subject the instant Motion. The responses appear deficient in a number of other respects
as well. Albert’s will continue to attempt to resolve Aaland’s discovery failures, including through
the meet & confer process set out in L.R. 37-1. To the extent not successful, motions practice may
be necessary.

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Aaland’s Motion states a self-serving belief that it will prevail on liability – suggesting, of

course, that damages discovery and proceedings will not be necessary. (See Mem. at p. 4

(asserting its view that damages are unlikely). Tellingly, the moving defendants in Texas

Roadhouse expressly made this argument as a supposed reason for bifurcation. See id. at p. 3.

Just as in that case, though, Aaland’s views on likely success are of no moment on the instant

Motion. See also Passmore v. Barrett, No. 2:13-cv-290, dkt. 114, at p. 4 (N.D. Ind. Mar. 31,

2016) (noting that the moving defendant’s view “that he will prevail and relieve the court of the

damages portion of the trial…” did not warrant bifurcation) (attached as Exhibit 3.)

Albert’s, of course, sees the case much differently, firmly believing that Aaland willfully

and intentionally adopted a logo that mimics the Albert’s logo – all to divert and/or confuse

consumers. Regardless, Aaland’s self-serving opinion of how the case might come out is not

sufficient basis for the Court to risk what is likely to happen with bifurcation - placing the case

in a posture that, if Aaland is not successful on liability (as Albert’s fully anticipates), a second

phase of fact and expert discovery specific to damages and a second trial may be needed to fully

resolve this dispute. Aaland’s brief even implicitly acknowledges this possibility, where it notes

that bifurcation would separate a liability trial from a damages trial if liability were established.

(Mem. at p. 4.)

Even if Aaland were to prevail on liability, though, an appeal is likely, which could result

in remand, more discovery, and further multiplied proceedings. Denying bifurcation under such

circumstances is appropriate. See Sams Hotel group, LLC d/b/a Homewood Suites Hotel v.

Environs, Inc., NO. 1:09-cv-0930-TWP-TAB, dkt. 163, at p.2 (S.D. Ind. Jun. 9, 2011) (attached

as Exhibit 4.)

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In any potential eventual scenario, the length that this case remains pending before final

resolution will end up being much longer if the case is bifurcated now and the parties hold for

later an entire phase of discovery and litigation, than if the current streamlined case schedule and

discovery process is maintained.

4. Aaland’s Motion Stands to Further Delay ADR

Aaland’s instant Motion is curious, given its prior position regarding ADR/settlement. As

the Court will note in the Report of Parties’ Planning Meeting, Aaland advocated for early ADR.

(“Report of Parties’ Planning Meeting” of March 30, 2023 (dkt. 18), at par. 5.) Albert’s, while

amenable to ADR, has maintained that it believes discovery is needed to place the Parties in

position to meaningfully attempt to resolve the case through ADR. (Id.) That remains Albert’s

view.

But now, despite supposedly preferring early ADR, Aaland seeks to avoid providing

Albert’s with any “damages” discovery. While it is not clear what information and documents

that might entail in Aaland’s view, Albert’s assumes it would include sales and other financial

information at the least (to be sure, the responses Aaland provided finally on June 15th object and

fail to provide this very information.) But it is that type of information that would shed light on

Albert’s allegations that Aaland’s actions in improperly adopting a confusingly similar logo were

willful and intentional and have resulted in sales. Perhaps that’s at least one reason why Aaland

has filed the instant motion, to avoid providing to Albert’s what could be damaging

documentation for it.

Regardless, without that information, Albert’s will continue to be “blind” with respect to

information that it needs to meaningfully participate in ADR. Aaland’s argument that “the parties

will be much more likely to reach settlement” from bifurcating liability and damages now seems

to imply that Aaland’s views of “early” ADR have changed. (See Mem. at p. 5.) After all,

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delaying for later the production of the documents and information as Aaland now requests, will

delay getting to Albert’s the documents and information it needs to make an informed decision

about settlement.

So contrary to Aaland’s claim, bifurcation will not assist in resolving this case, certainly

not any time in the near term. Thus, another reason to deny bifurcation is to ensure that the parties

timely obtain all relevant information that will enable them to meaningfully mediate the case

sooner than later.

C. Albert’s Will Be Prejudiced by Bifurcation

Bifurcation stands to prejudice Albert’s. While Aaland makes various generalized and

unsupported claims about how bifurcation will supposedly avoid prejudice (including to Albert’s)

and simplify the case, nowhere in its Motion has it actually attempted to persuasively explain just

how doing so will not prejudice Albert’s. (See Mem. at p. 6.)

As Albert’s has noted above, bifurcation stands to require duplicated discovery. Again,

liability and damages issues are not easily compartmentalized in a case such as this. Thus, not

only will this likely continue to give rise to discovery disputes, but will inevitably lead to

duplication of discovery in a later “damages” phase that were conducted in an earlier “liability”

phase. Experts, for instance, will necessarily need to address factual issues relevant to

infringement liability, that will also relate to potential damages. And that, of course, will increase

the amount of time and money that Albert’s must incur to prosecute this case.

Bifurcation will also delay resolution, again forcing Albert’s to incur additional fees and

costs to prosecute Aaland’s improper actions. In addition to requiring the current case schedule

to be modified to accommodate two separate phases, meaningful ADR anytime in the near-term

will not happen without the kinds of discovery that are likely to be the subject of what Aaland

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expects to defer through bifurcation (including sales and other financial information that would

relate to damages but also liability). Beyond that, though, regardless of how liability is

determined, further proceedings are likely even if that might involve an intervening appeal. And

that, of course, means increased fees and costs to litigate.

In short, in this case, bifurcation will achieve no efficiencies. Aaland has not successfully

carried its burden, and the Court should deny the Motion.

D. Aaland Could and Should Have Raised the Issue of Bifurcation During the
Court’s Ordered Rule 16 Preliminary Pretrial Conference Process

The Court ordered and held a Rule 16 Preliminary Pretrial Conference on April 6, 2023.

(See dkt. 14 (Order Setting Conference), and dkt. 19 (Report on same)). Pursuant to the Court’s

order setting the Conference, Aaland actively participated in the Fed. R. Civ. P. 16 schedule

planning process. That was three months ago.

1. Aaland Failed to Timely Propose Bifurcation or Discovery “Staging”

As part of that process, Aaland agreed to the submission of the “Report of Parties’ Planning

Meeting” of March 30, 2023 (dkt. 18). At no time during that planning process, which involved

several rounds of communications by and between the parties’ counsel, did Aaland inject the

potential for bifurcation into the proposed Report – and nowhere in the Report of Parties’

Planning Meeting is bifurcation or the potential for it mentioned or even suggested. (See id.).

Under such circumstances, entertaining a motion to bifurcate would be inappropriate. See

Malone v. Hakes, No.: 1:17-CV-505-WCL-PRC, dkt. 27, at pp. 1-2 (N.D. Ind. Mar. 14, 2018)

(addressing a motion to stay discovery rather than a motion to bifurcate, but noting the practical

effect of the motion to be bifurcation of discovery into stages) (attached as Exhibit 5.) In Malone,

the court had held a Rule 16(b) preliminary pretrial conference and had entered a scheduling

order that same date. Id. at p. 1. There, the Report of Parties' Planning Meeting expressly listed

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"immunity" as a category of discovery, but did not request, or even suggest, the bifurcation of

discovery into stages. Id. at pp. 1-2. The report simply listed the categories of discovery that

would be needed. Id. Moreover, as the court noted, moving counsel did not request bifurcated

discovery at the preliminary pretrial conference, despite the representation that the moving

defendant intended to conduct expedited discovery on the matter of immunity. Id. Given those

facts, the court denied the motion to bifurcate because the moving defendant had not shown good

cause for modifying the Rule 16(b) scheduling order entered by the court previously. Id., citing

Fed. R. Civ. P. 16(b)(4).

The relevant facts here are just like those at issue in Malone. Aaland willingly and

knowingly negotiated the case schedule that the Parties jointly submitted to this Court in March,

2023. That schedule provides for a single fact discovery period, and a single expert discovery

period. (Id. at pars. 3(c)-(f), and Proposed Schedule attached thereto.) Also of note, the Report

of Parties’ Planning Meeting provides for one trial, not two or even the option for a second at

some later date. (Id. at par. 4(e) and Proposed Schedule Attached thereto).

2. Aaland Went Farther, Agreeing That Damages Discovery Was

Appropriate, Proposing To This Court a Schedule Encompassing It,
and Demanding Entry of a Protective Order Specifically To Allow For
The “Damages” Discovery That It Now Seeks To Bifurcate

The schedule that Aaland jointly proposed to the Court does not separate liability from

damages for discovery or any other case aspect. Just like in Malone, it instead lists categories of

discovery that would be needed – and it included “damages” discovery. (Id at par. 3(a)(ii).)

Aaland counsel went so far when negotiating the case schedule, in fact, to insist on entry of a

protective order - expressly contemplating discovery under the proposed schedule that it jointly

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submitted to this Court of the kinds of information that its present Motion seeks now to put off

for a second case phase.3 (Id.)

In particular, the Report of Parties’ Planning Meeting expressly notes, with respect to

discovery into “Defendant’s sales and profits prior to and since adopting and using the logo

trademark as set forth in the Complaint…,” that “Prior to the exchange of any sales and profits,

the parties agreed to negotiate in good faith a protective order. (See Section 4(g)).” Id. The Parties

did just that, in fact, with Albert’s expending significant time and expense preparing and

negotiating a form of order filed with and entered by the Court. (See dkt. 22).

Throughout the planning process, Aaland had Albert’s Complaint. It knew the nature and

extent of Albert’s claims. It has not, and cannot, demonstrate any persuasive reason why it could

not have raised the issue of bifurcation before now. Instead of doing so, it negotiated the current

case schedule, which in turn led Albert’s to expend time and money preparing and serving

discovery requests, as well as preparing and negotiating the protective order that Aaland itself

insisted on and which was expressly contemplated in the Report of Parties’ Planning Meeting.

Having done all that, only now – nearly three months after having negotiated and submitted

to this Court a case schedule that Albert’s has relied on and now spent time and effort to timely

advance, and having its desired protective order entered – does it move to bifurcate and set off

for later discovery and other case proceedings that are necessary to resolve this case. To be sure,

its lengthy failure to respond with any substance to discovery requests that Albert’s served on it

over two months ago, to instead seek a major case modification through bifurcation that would

3
On this point, Aaland’s suggestion that its production of “confidential financial
information” absent bifurcation is further reason for bifurcation, is not persuasive. (See Mem. at
pp. 6-7.) It cites no authority for its “serious risk” proposition. Moreover, given that it not only
insisted on entry of a protective order, but by doing so caused Albert’s to expend time and expense
to prepare and negotiate such an order that the Court has already entered, its point falls flat.

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allow it to avoid responding to at least some of the discovery that Albert’s is seeking, is troubling.4

Not until Albert’s disputed its continuing discovery delays, in fact, did Aaland even bother to

address the fact that its self-proclaimed extended discovery deadline had passed without any

responses served.

Aaland knew the nature of Albert’s claims when it negotiated a case process and schedule,

insisted on entry of a protective order, and submitted all of this to this Court. There is no

legitimate basis for it to be allowed to change course now, particularly given how doing so will

complicate the case, multiple proceedings, and delay ADR and ultimate resolution.

VIII. CONCLUSION

Aaland bears the burden of demonstrating that bifurcation is warranted. It has failed to do

so. This case is not an unusual Lanham Act case. It does include related state law claims, just as

many such cases do, but it involves only one Plaintiff and one Defendant, and issues relating to

liability and damages overlap. Bifurcation stands to complicate the case, lead to discovery

disputes, and prejudice to Albert’s. The issue was not significant enough for Aaland to raise in a

timely way, and the Court should deny the Motion.

4
Notably, at no time before filing the instant Motion did Aaland raise with Albert’s any
objections to or concerns about the scope of Albert’s initial discovery requests, which include
requests for information and documents related to both liability and damages. Aaland failed to
provide any responses at all until June 15th, the day before Albert’s instant Opposition was due.
And while those responses appear deficient in other respects as well, it is clear that Aaland is using
the instant Motion to avoid discovery that it agreed to and proposed previously to this Court.

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USDC IN/ND case 2:23-cv-00039-JD-JPK document 27 filed 06/16/23 page 17 of 18

Respectfully submitted,

/s/ Daniel W. Glavin

Daniel W. Glavin (8002-45)
Jeremy W. Willett (25872-45)
O’Neill McFadden & Willett LLP
833 West Lincoln Highway, Suite 410W
Schererville, IN 46375
(219) 322-0450
dglavin@omwlegal.com
jwillett@omwlegal.com

/s/ Gary E. Hood

Gary E. Hood (IL 6281580)
Hood Legal Group PC
720 Seneca St, Suite 107 #1039
Seattle, WA 98101
877 866-1830
ghood@hoodlegalgroup.com
Attorneys for Plaintiff

{00382843.docx} 17
USDC IN/ND case 2:23-cv-00039-JD-JPK document 27 filed 06/16/23 page 18 of 18

CERTIFICATE OF SERVICE

I hereby certify that on the 16th day of June, 2023 the foregoing document was filed
electronically using the Court’s electronic filing system (CM/ECF) which sent notification of such
filing to all parties of record herein.

Gary E. Hood David E. Woodward

Hood Legal Group PC Woodward Law Offices, LLP
720 Seneca St, Suite 107 #1039 200 East 90th Drive
Seattle, WA 98101 Merrillville, Indiana 46410
ghood@hoodlegalgroup.com dwoodward@wbbklaw.com

Mark A. Thiros
Thiros & Thiros, P.C.
200 East 90th Drive
Merrillville, IN 46410
mark@thiros.com

O’NEILL MCFADDEN & WILLETT LLP

By: /s/ Daniel W. Glavin

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