Smartmatic USA Corp. v. Lindell

U.S. District Court, District of Minnesota October 19, 2023

Trial Court Opinion

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


 SMARTMATIC USA CORP.,           Case No. 22-CV-98 (WMW/JFD)             
 SMARTMATIC INTERNATIONAL                                                
 HOLDING B.V., AND                                                       
 SGO CORPORATION LIMITED,

ORDER

Plaintiffs,

MICHAEL J. LINDELL, AND MY
PILLOW, INC.,

Defendants.

This matter is before the Court on cross-motions to compel. (Dkt. Nos. 140, 146.)
The Court heard oral argument on the motions on July 25, 2023. (Hr’g Mins., Dkt.
No. 155.) Michael Bloom, James Bedell, and William Manske represented Plaintiffs
Smartmatic USA Corp., Smartmatic International Holding B.V., and SGO Corporation
Limited (collectively, “Smartmatic”). (Id.) Andrew Parker and Abraham Kaplan
represented Defendants Michael Lindell and My Pillow, Inc. (“My Pillow”). (Id.) The
Court grants Smartmatic’s Motion to Compel, and grants in part and denies in part
Defendants’ Motion to Compel.
The factual and procedural background in this matter has been set forth previously
and need not be repeated. (See Order on Mots. to Compel, Dkt. No. 160.) Here, Smartmatic
asks the Court to compel Defendants to respond to certain requests for production
(“RFPs”). (Pls.’ Mem. Supp. 5–13, Dkt. No. 142.) For their part, Defendants ask the Court
to require Smartmatic to make initial disclosures and respond to certain interrogatories.
(Defs.’ Mem. Supp. Mot. Compel 9–18, Dkt. No. 149.)

I. LEGAL STANDARDS
A. Discovery Must be Relevant and Proportional.
Civil litigants may discover nonprivileged information “relevant to any party’s
claim or defense.” Fed. R. Civ. P. 26(b)(1). This is a broad, but not boundless, standard;
parties can discover only relevant information that is “proportional to the needs of the
case.” Id. In assessing proportionality, courts consider “the importance of the issues . . .,

the amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely benefit.” Id.
The Federal Rules of Civil Procedure give litigants several tools to gather
information during the discovery process, including interrogatories governed by Rule 33

and RFPs governed by Rule 34. A party served with an interrogatory must either answer it
“fully” or object to it within 30 days. Fed. R. Civ. P. 33(b)(3). A party fails to respond to
an interrogatory not only when it neither answers nor objects, but also when it submits an
“evasive or incomplete” answer. Fed. R. Civ. P. 37(a)(4). A party must produce responsive
materials or object to RFPs on the same timeline that applies to interrogatories, that is,

within 30 days. Fed. R. Civ. P. 34(b)(2)(A). Objections to RFPs must be specific and “state
whether any responsive materials are being withheld on the basis of that objection.” Fed.
R. Civ. P.34(b)(2)(C).
When a requesting party believes its discovery requests are relevant and
proportional, but a responding party has not produced the requested information, the

requesting party may move for an order compelling the responding party’s production. Id.
Fed. R. Civ. P. 26(b)(2), 37. The party seeking discovery must make a threshold showing
of relevance. Sherman v. Sheffield Fin., LLC,

338 F.R.D. 247

, 252 (D. Minn. 2021) (citing 
Hofer v. Mack Trucks, Inc.,

981 F.2d 377, 380

 (8th Cir. 1992)). If the moving party meets 
its initial burden of showing that the requested discovery is relevant, then the burden shifts 
to the party resisting discovery to show either that it is not relevant or that it is unduly 

burdensome. Patterson Dental Supply, Inc. v. Pace, No. 19-CV-1940 (JNE/LIB),

2020 WL 10223625

, at *20 (D. Minn. June 17, 2020). If a party prevails on a motion to compel, the 
court must award that party its expenses in bringing the motion, unless the moving party 
failed to meet and confer, the opposing party’s conduct was “substantially justified,” or it 
would otherwise be unjust to order expenses. Fed. R. Civ. P. 37(a)(5).    

     B. Defamation                                                       
    This is a lawsuit alleging defamation and deceptive trade practices in which federal 
subject-matter jurisdiction is premised on diversity of citizenship. (Suppl. Compl. ⁋ 20, 
Dkt. No. 125.) Federal courts sitting in diversity apply state substantive law and federal 
procedural law. Shady Grove Assocs., P.A. v. Allstate Ins. Co.,

559 U.S. 393, 398

 (2010); 

Erie R. Co. v. Tompkins,

304 U.S. 64, 78

 (1938). The Court will assess the relevancy and 
proportionality of these discovery motions in light of the elements of defamation and 
deceptive trade practices under the substantive law of Minnesota.         
    To prevail on a defamation claim under Minnesota law, Smartmatic must prove 
“that a statement was false, that it was communicated to someone besides [Smartmatic], 

and that it tended to harm [Smartmatic’s] reputation and to lower [it] in the estimation of 
the community.” Rouse v. Dunkley & Bennett, P.A.,

520 N.W.2d 406, 410

 (Minn. 1994). 
Because Smartmatic is a public figure,1 it must also show that Mr. Lindell made the 
statement with “actual malice,” meaning that he knew the statement was false or that he 
recklessly disregarded the truth or falsity of the statement when he made it. (Ord. Denying 
Mot. to Dismiss 6 (quoting New York Times Co. v. Sullivan,

376 U.S. 254

, 279–80 (1964)).) 

    Under  Minnesota  law,  certain  types  of  false  statements  are  presumed  to  be 
defamatory, including accusations of crime and statements that tend to injure a plaintiff in 
its business, trade, or profession. Maethner v. Someplace Safe, Inc.,

929 N.W.2d 868, 875

 
(Minn. 2019). Smartmatic claims that the allegedly false statements of Mr. Lindell (which 
Smartmatic seeks to impute to My Pillow) were defamatory per se because they damaged 

Smartmatic’s reputation in its business. (Suppl. Compl. ¶ 373.) Damages are presumed 
when a plaintiff has shown that a defendant’s statement was defamatory per se, unless the 
defamatory statement was about a matter of public concern, in which case a plaintiff, to 
recover, must show actual reputational harm. Maethner, 929 N.W.2d at 874–75. Because 
“the invalidity of a presidential election as a result of hacking is a matter of public concern,” 

Smartmatic must show that Mr. Lindell made his statements with actual malice and the 

1    Minnesota law regards corporations as “public figures” for defamation law. Judge 
Wright found that Smartmatic, since it consists of three corporations, was a public figure. 
(Ord. Denying Mot. to Dismiss 6, Dkt. No. 52.)                            
statements caused actual reputational harm. (Ord. Denying Mot. to Dismiss 6 (quoting 
Maethner,

929 N.W.2d at 879

).)                                            

    “[T]ruth is an absolute defense to a defamation claim” in Minnesota. Carpenter v. 
Extendicare Health Servs. Inc., No. 15-CV-120 (MJD/JJK),

2015 WL 7729406

, at *7 
(D Minn. Oct. 26, 2015), R&R adopted,

2015 WL 7720477

(D. Minn. Nov. 30, 2015). This
means Defendants can defeat the defamation claims if they prove the statements at issue
were true.
To prove a violation of the Minnesota Deceptive Trade Practices Act, Smartmatic

must demonstrate that Defendants “disparage[d]” Smartmatic’s “goods, services, or
business . . . by false or misleading representation[s] of fact” in the course of its business.
Minn. Stat. § 325D.44 subdiv. 1(8) (2022).
II. ANALYSIS
A. Smartmatic’s Motion to Compel

1. Smartmatic Has Properly Pleaded Its Request for Punitive Damages.

In RFP Nos. 30–33, Smartmatic seeks discovery about Mr. Lindell’s personal
financial situation, on the theory that he was motivated to defame Smartmatic for pecuniary
gain. Smartmatic adduces examples of what it asserts are Mr. Lindell and members of the
Trump campaign urging the audience at Trump rallies to purchase My Pillow products and
disseminating My Pillow discount codes. Smartmatic argues that information about Mr.
Lindell’s finances is relevant not only to motive and actual malice, but also to Smartmatic’s
punitive damages request. (Pl.’s Mem. Supp. 9–10.)
It is not clear from the record whether Defendants originally claimed, in their
objection to RFP Nos. 30–33, that Smartmatic did not properly plead a claim for punitive

damages. Because this ground for declining to comply with these RFPs is clearly stated in
Defendants’ Memorandum in Opposition to Smartmatic’s Motion to Compel, and because
Smartmatic has neither argued that Defendants have waived this objection, nor provided a
record showing what response Defendants made to the Smartmatic RFPs at issue, the Court
will consider Defendants’ objection. (Pls.’ Mem. Supp. Mot. Compel 9 (citing Bloom Decl.
Ex. D, Dkt. No. 143-4).)

Under Minnesota procedural law, a plaintiff may not seek punitive damages in the
original complaint, but “may make a motion to amend the pleadings to claim punitive
damages” at a later stage in the litigation. In state court, a motion to add a claim for punitive
damages must include “one or more affidavits showing the factual basis for the claim” and
the specific legal bases on which the punitive-damages claim is premised.

Minn. Stat. § 549

.191–.20. By contrast, the Federal Rules require only “a short and plain statement of 
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).  
    Courts in this District used to require parties seeking punitive damages to follow the 
Minnesota state procedure, that is to forego claiming punitive damages in their opening 
complaint, and to file a motion to amend the complaint later, accompanied by affidavits, to 

add  a  punitive  damages  claim.  These  decisions  were  frequently  premised  on  an 
apprehension that plaintiffs, seeing that punitive damages claims could be asserted more 
easily in federal court than in state court, would forum shop. Zeelan Industries, Inc. v. de 
Zeeuw,

706 F. Supp. 702, 705

 (D. Minn. 1989) (MacLaughlin, J.) (“[P]laintiff’s claim for 
punitive damages should be stricken. In the absence of a conflicting Federal Rule, federal 
courts must apply state law where failure to do so would lead to forum shopping. . . .”); 

Kuehn v. Shelcore,

686 F. Supp. 233, 235

 (D. Minn. 1986) (Devitt, J.) (“[A] party might 
well choose [a forum that does not follow § 549.191] because it provides a tactical, though 
non-dispositive, advantage. In the court’s view, this variation is substantial enough to 
influence forum choice and, under Erie, must be eliminated by applying § 549.191 in this 
federal diversity action.”)                                               
    In Shady Grove, the Supreme Court held that “a Federal Rule governing procedure 

is valid whether or not it alters the outcome of the case in a way that induces forum 
shopping” and allowed a class action lawsuit filed in the Eastern District of New York to 
proceed in federal court under Fed. R. Civ. P. 23 even though a New York state statute 
procedurally prohibited it.

559 U.S. 393

, 416. After Shady Grove held that apprehension 
of forum shopping is not a good reason for preferring state to federal procedural law, the 

majority of courts in this District sitting in diversity looked to Fed. R. Civ. P. 15(a)(2) 
rather  than

Minn. Stat. § 549.191

  for  the  procedural  law  that  sets  out  the  pleading 
requirements for a punitive damages claim.2                               


2    The undersigned magistrate judge has previously followed Rule 15, rather than

Minn. Stat. § 549.191

, in deciding whether to allow amendment of a complaint to add a 
punitive damages claim. Russ v. Ecklund Logistics Inc.,No. 19-CV-2719 (DSD/JFD),

2022 WL 856020

 at *4 (D. Minn. Mar. 23, 2022). The other judges who have followed Rule 15 
are the Honorable Eric C. Tostrud, the Honorable John R. Tunheim, the Honorable Ann D. 
Montgomery, the Honorable Nancy E. Brasel, the Honorable Kate M. Menendez, the 
Honorable  Elizabeth  Cowan  Wright,  the  Honorable  Dulce  J.  Foster,  the  Honorable 
Franklin L. Noel, the Honorable Steven E. Rau, the Honorable Hildy Bowbeer, and the 
Honorable Becky R. Thorson. See Shank v. Carleton Coll., No. 16-CV-1154 (PJS/HB), 
    Here, Smartmatic included a claim for punitive damages in its complaint and so 
does not need to amend its pleadings to conform with the heightened pleading standard 

required under Minnesota law. Smartmatic argues that it properly included the claim at the 
outset of this lawsuit, given the recent trend in this District for courts sitting in diversity

2018 WL 4961472

, at *4 (D. Minn. Oct. 15, 2018) (Bowbeer, J.), aff’d, No. 16-CV-1154 
(ECT/HB),

329 F.R.D. 610

 (D. Minn. 2019) (Tostrud, J.); Mgmt. Registry, Inc v. A.W. 
Companies, Inc., No. 17-CV-5009 (JRT/KMM),

2020 WL 487315

, at *2–3 (D. Minn. Jan. 
30, 2020) (Tunheim, J.); Urbieta v. Mentor Corp., No. 13-CV-1927 (ADM/LIB),

2018 WL 3475484

, at *3 (D. Minn. July 19, 2018) (Montgomery, J.); Am. Achievement Corp. v. 
Jostens, Inc.,

622 F. Supp. 3d 749

, 765 (D. Minn. 2022) (Brasel, J.); Mgmt. Registry, Inc. 
v. A.W. Companies, Inc., No. 17-CV-5009 (JRT/KMM),

2019 WL 7838280

, at *13 (D. 
Minn. Sept. 12, 2019) (Menendez, J.), R&R adopted in part,

2020 WL 487315

 (D. Minn. 
Jan. 30, 2020); Orange Rabbit, Inc. v. Franchoice, Inc., No. 19-CV-687 (MJD/ECW),

2020 WL 2191947

, at *2 (D. Minn. May 6, 2020) (Cowan Wright, J.); McNamara v. Kuehne, 
No. 22-CV-47 (NEB/DJF),

2023 WL 2189980

, at *2 (D. Minn. Feb. 6, 2023) (Foster, J.), 
R&R adopted,

2023 WL 2189055

 (D. Minn. Feb. 23, 2023); Rogers v. Mentor Corp., No. 
12-CV-2602 (SRN/SER),

2018 WL 2215519

, at *6 (D. Minn. May 15, 2018) (Rau. J.), 
aff’d sub nom. Urbieta v. Mentor Corp., No. 13- CV-1927 (ADM/LIB),

2018 WL 3475484

 
(D. Minn. July 19, 2018); Ramirez v. AMPS Staffing, Inc., No. 17- CV-5107 (DWF/BRT),

2018 WL 1990031

, at *5–6 (D. Minn. Apr. 27, 2018) (Thorson, J.); In re Bair Hugger 
Forced Air Warming Devices Prods. Liab. Litig., No. 15-MDL-2666 (JNE/FLN),

2017 WL 5187832

, *5–6 (D. Minn. July 27, 2017) (Noel, J.); cf. Selective Ins. Co. of S.C. v. Sela,

353 F. Supp. 3d 847

, 855–63 (D. Minn. 2018) (Schiltz, C.J.) (calling previous practice of 
applying

Minn. Stat. § 549.191

 and not Rule 15 “troubling,” re-examining a similar 
practice regarding

Minn. Stat. § 604.18

, and finding that Federal Rules, not state statute 
controlled). But see Johannessohn v. Polaris Indus., Inc., No. 16-CV-3348 (WMW/LIB),

2022 WL 3585152

, at *2 (D. Minn. Aug. 22, 2022) (holding that parties must conform to

Minn. Stat. § 549.191

); Inline Packaging, LLC v. Graphic Packaging Int’l, LLC, No. 15-
CV-3183 (ADM/LIB),

2018 WL 9919941

, at *5, *31 (D. Minn. Mar. 8, 2018) (holding 
that parties seeking to add a punitive damages claim must follow the procedure set out in

Minn. Stat. § 549.191

), relevant objs. overruled as moot,

351 F. Supp. 3d 1187

 (D. Minn. 
2018), aff’d on other grounds,

962 F.3d 1015

 (8th Cir. 2020).             
jurisdiction to apply Rule 15, rather than Minnesota Statute § 549.191 in analyzing whether 
a claim for punitive damages is properly pleaded. (Pls.’ Mem. Supp. 2d Mot. Compel 9.)3  

    Defendants contend that Smartmatic has not properly pleaded its claim for punitive 
damages and therefore is not entitled to discovery related to that claim. Indeed, Defendants 
assert that § 549.191 is a substantive law that “created a clear and convincing evidentiary 
threshold, which, if not met, is dispositive of punitive damages before trial,” and thus 
Defendants assert that the Shady Grove analysis does not apply here. (Defs.’ Mem. Opp’n 
Mot.  Compel  5.)  And,  according  to  Defendants,  even  if  §§ 549.191  and  549.20  are 

procedural, they do not conflict with the Federal Rules. (Id. at 4.) But the reasoning of the 
cases on which Defendants rely for this argument has been rejected. For example, the 
analysis in Inline Packaging, LLC v. Graphic Packaging Int’l, LLC, No. 15-CV-3183 
(ADM/LIB),

2018 WL 9919941

, at *31 (D. Minn. Mar. 8, 2018) was later rejected by 
Speed RMG Partners, LLC v. Arctic Cat Sales Inc., No. 20-CV-609 (NEB/LIB),

2021 WL 7286933

, at *3–6 (D. Minn. Aug. 6, 2021) (Brasel, J.).                    
    The Court determines that Rule 15 and § 549.191 are conflicting procedural rules. 
See Speed RMG Partners,

2021 WL 7286933

, at *6. Therefore, the Court finds, consistent
with the great weight of post-Shady Grove authority in this District, that Rule 15(a)(2)
provides the appropriate procedural tool to examine whether Smartmatic’s claim for

3 Additionally, Smartmatic argues that it is too late for Defendants to raise this
argument, as Smartmatic included the request for punitive damages in its initial Complaint,
Defendants did not raise this argument in their motions to dismiss, or in answering either
the original Complaint or the Supplemental Complaint. (Pls.’ Mem. Supp. Mot. Compel
10.) Defendants did not respond to this argument, and the Court need not address it.
punitive damages is properly pleaded. Because Smartmatic’s claim complies with the
pleading requirements in Rule 8 and Rule 15, the Court concludes that the punitive

damages request is properly pleaded.
2. Defendants Must Produce Documents Relating to Mr. Lindell’s
Finances.

Defendants object to four RFPs (30, 31, 32, 33) regarding Mr. Lindell’s finances.
Smartmatic seeks documents showing Mr. Lindell’s “financial condition from 2020 to the
present, including but not limited to, annual financial reports and tax returns” (RFP 30) and
“ownership interest in any company or entity, including, but not limited to, MY PILLOW,
from 2020 to the present,” (RFP 31) as well as “[d]ocuments and communications relating
to any audit of LINDELL by the U.S. Internal Revenue Service from 2020 to the present”
(RFP 32) and “[d]ocuments and communications relating to any loans received, secured,
or negotiated for LINDELL or for MY PILLOW from 2020 to the present,” (RFP 33).
(Pls.’ Mem. Supp. Mot. Compel 4, 13; Bloom Decl. Ex. B at 4–5, Dkt. No. 143-2.)
Defendants contend that Mr. Lindell’s financial condition is not relevant to proving
actual malice, because that standard, as laid out in N.Y. Times Co. v. Sullivan, 376 U.S.

at 279–80, focuses on “the defendant’s attitude toward the truth of what he has said rather
than on his attitude toward the plaintiff.” (Defs.’ Mem. Opp’n Mot. Compel 6.) Thus,
Defendants contend that to prove actual malice, Smartmatic must show that Defendants
had a reckless disregard for the truth of the allegedly defamatory statements. (Id.) Further,
Defendants state that My Pillow has already completed the requested financial disclosures,

which they assert will show that Mr. Lindell was not “motivated by profit.” (Id.)
Smartmatic argues that evidence of Mr. Lindell’s alleged ill will or improper motive
is relevant to proving actual malice, although it alone does not satisfy the actual malice

standard. (Pls.’ Mem. Supp. Mot. Compel 12.) Smartmatic emphasizes that earlier in this
lawsuit, the Court found that Smartmatic had plausibly alleged that Mr. Lindell was
motivated to defame Smartmatic in order to benefit financially. (Id.) In denying
Defendants’ motion to dismiss, Judge Wilhelmina Wright determined that Smartmatic had
plausibly “allege[d] that Lindell made and promoted his defamatory statements for his own
profit,” such as “on several occasions Lindell told audiences to purchase MyPillow

products after making claims of election fraud and supplying audiences with MyPillow
promotional codes related to Lindell’s election-hacking theories.” (Order Denying Mot. to
Dismiss 4, Dkt. No. 52.) Smartmatic also references text messages sent by Mr. Lindell in
which he stated that “being crazy in the news” and being banned from Twitter improved
My Pillow sales. (Pls.’ Mem. Supp. Mot. Compel 13 (citing Bloom Decl. Exs. E, F, Dkt.

Nos. 143-6, 143-7).) Smartmatic plausibly pleads that discount codes for My Pillow
products were featured in the same programs as Mr. Lindell’s allegedly defamatory
statements. (Suppl. Compl. ¶¶ 338–41.)
As Judge Wright earlier concluded, the Court finds that Mr. Lindell’s financial
status is relevant to Smartmatic’s claim of actual malice. Therefore, the Court grants

Smartmatic’s motion as to RFP Nos. 30, 31, 32, and 33.
B. Defendants’ Motion to Compel
1. Smartmatic Shall Supplement Its Rule 26 Disclosures to Include a
Computation of Each Category of Damages it Claims.

At the outset of discovery, parties must disclose “a computation of each category of
damages claimed” and “make available for inspection and copying . . . the documents or
other evidentiary material, unless privileged or protected from disclosure, on which each
computation is based, including materials bearing on the nature and extent of injuries
suffered.” Fed. R. Civ. P. 26(a)(1)(A)(iii).
Smartmatic has not provided any damages computations, informing Defendants that
it intended to provide a computation of its claimed damages when its expert issued their
report. Smartmatic argues that it need not provide any information as to the damages related

to its claimed reputational harm because on a claim of defamation per se, “a plaintiff may
recover without any proof of actual harm,” and the jury has wide discretion to determine
an appropriate amount of damages. (Pls.’ Mem Opp’n Mot to Compel 11, Dkt. No. 153
(citing Longbehn v. Schoenrock,

727 N.W.2d 153, 161

 (Minn. Ct. App. 2007).)4 Even so, 
Smartmatic stated that it would provide a damages computation related to reputational 

harm when its expert report was available, because “Smartmatic possesses neither the 
underlying data nor the expert testimony through which it will compute its damages.” (Pls.’ 




4    At this juncture, the Court considers only whether a damages claim is properly 
included in the Complaint, not whether Smartmatic may recover such damages in the event 
that a jury would reach that decision.                                    
Mem Opp’n Mot to Compel 14.) Initial expert reports were due on September 22, 2023. 
(2d Am. Pretrial Scheduling Order, Dkt. No. 168.)                         

    Smartmatic further argues that it cannot compute the economic damages while “in 
the middle of fact discovery.” (Id. at 15.) To recover economic damages, Smartmatic must 
show that Defendants were a “substantial factor” in causing Smartmatic’s losses. See 
Longbehn,

727 N.W.2d at 160

(quoting Restatement (2d) of Torts § 622A(a) (1977)).
Smartmatic asserts that it is still investigating “lost opportunities for which Defendants
were a substantial factor,” and once it obtains such information, its experts will analyze the

information to appropriately calculate Smartmatic’s losses. (Pls.’ Mem Opp’n Mot to
Compel 13–14.) Further, Smartmatic maintains that it has and will produce all of the
information related to lost opportunities. Smartmatic has provided Defendants with an
extensive list of jurisdictions that Smartmatic “believes may not do business with it based
on defamatory statements published about Smartmatic following the 2020 election.” (Id.

at 14.) Subsequently, Smartmatic “identified a subset of jurisdictions that will not do
business with it” based on Defendants’ conduct. (Id. at 14.) While Smartmatic contends
that it is waiting on Defendants to produce the discovery it needs in order to make its
economic damages calculations, surely it is Smartmatic, not Defendants, who have the
information related to its lost business opportunities. (See id. at 17.)

Defendants contend that Smartmatic’s proposed timeline would prevent them from
conducting any fact discovery regarding Smartmatic’s claimed damages, and that
Smartmatic’s refusal to provide any damages computations falls far short of the
requirements for initial disclosures that Rule 26 dictates. (Defs.’ Mem. Supp. Mot. to
Compel 11.) At the hearing, Defendants’ counsel explained that Smartmatic’s counsel had,
a few days earlier, provided a document from early 2021 listing numerous jurisdictions

where Smartmatic saw a potential business opportunity, the value of that opportunity, and
a predicted decrease in value. The Court notes that the document was not labeled as an
exhibit and thus does not consider the document evidence. The document merely
represents, as Defendants’ counsel argued, that Smartmatic is capable of calculating the
decrease in its likelihood of securing various contracts and of calculating how much that
likelihood has diminished. Further, the Court notes that although diminution of business is

similar to damages, the diminution may be due to other factors, and thus it may not map
exactly onto a computation of damages.
The Court understands that Smartmatic is conducting ongoing discovery to ascertain
a final damages amount. Even so, fact discovery is almost complete. It is reasonable for
Smartmatic to make a good faith effort to estimate the emotional and punitive damages it

claims, with the understanding that the estimates may change during expert discovery.
Henne v. Great River Reg’l Libr., No. 19-CV-2758 (WMW/LIB),

2021 WL 6804560

,
at *20 (D. Minn. Jan. 4, 2021) (determining that “although plaintiff represents that a final
calculation of her non-economic damages depends on facts that have not yet been
discovered and that her non-economic emotional distress and punitive damages continue

to accrue, she is required to disclose damage computations based on the information
available to her”) (cleaned up).
The Court grants Defendant’s motion as to Smartmatic’s initial disclosures, and
Smartmatic shall provide an estimate of its claimed economic and punitive damages to
Defendants, with the understanding that the estimate may change as discovery proceeds.
Then, at the close of discovery, Smartmatic shall provide a finalized “computation of each

category of damages” as required by Rule 26(a)(1)(A)(iii).
2. Smartmatic Shall Substantively Answer Interrogatory No. 20.

In Interrogatory No. 20 Defendants ask Smartmatic to “[p]rovide an itemized list of
all damages . . . identifying for each item of damages the amount and all material facts
tending to show that You suffered these damages” and to “identify all persons and
jurisdictions . . . whom You allege would have purchased Smartmatic products but did not
do so as a result of any act by Defendants,” and “the act(s) by Defendants that you allege
caused these persons or jurisdictions not to purchase Smartmatic Products.” (Kaplan Decl.
Ex. D. at 20, Dkt. No. 150-1.) Defendants move the Court to compel Smartmatic to respond
to this interrogatory so that Defendants can have an “opportunity to obtain third-party
discovery [and] pursue additional fact discovery [and] investigation,” rather than require

Defendants to wait for Smartmatic’s expert report to issue at the close of discovery. (Defs.’
Mem. Mot. Compel 13.)
In its answer to this Interrogatory, Smartmatic stated that its “damages include lost
sales, revenues, profits, and damage to its brand name, business value, reputation, and
goodwill.” (Kaplan Decl. Ex. D. at 20–21.) Smartmatic supplemented its answer,

providing a list of 75 jurisdictions that either “may not do business with Smartmatic” or
“have expressed concerns about doing business with Smartmatic.” (Id. Ex. I at 32.)
Smartmatic has produced audited financial statements, budgets, forecasts, and bids,
contracts, and a database of opportunities it has pursued. (Pls.’ Mem. Opp’n Mot to Compel
2.)

Defendants contend that this information is inadequate. Defendants argue that
Smartmatic must provide damages information, “particularly where [Smartmatic] seeks
recovery based on specific, identifiable facts—and in what amounts, along with the identity
of any individuals who have information regarding his asserted damages.” (Defs.’ Mem.
Mot to Compel 13 (quoting Gacek v. Owens & Minor Distrib., Inc., No. 09-CV-3202
(PAM/LIB),

2010 WL 11534503

, at *3 (D. Minn. Oct. 21, 2010), aff’d,

2010 WL 4286330

 

(D. Minn. Oct. 25, 2010)). Without a computation of damages, Defendants argue that they 
cannot  adequately  prepare  a  defense.  (Defs.’  Mem.  Supp.  Mot.  to  Compel  12–17.) 
Additionally, Defendants contend that it is improper for Smartmatic to generally refer 
Defendants to all the documents that it claims support its damages, and that instead 
Smartmatic  must  refer  to  the  specific  documents  that  it  used  to  reach  its  damages 

calculations and those documents on which its expert relied. (Id. (citing Gacek,

2010 WL 11534503

, at *8)) Defendants also argue that Smartmatic has failed to specify any contract
that it lost due to the alleged defamation. (Defs.’ Mem. Supp. Mot. to Compel 14.)
While the Court finds that expert discovery about Smartmatic’s alleged diminution
in value and alleged lost business opportunities is necessary for Smartmatic to finalize its

responses to this interrogatory, the Court also finds that waiting until the close of expert
discovery to supplement Smartmatic’s response would prevent Defendants from using that
information in shaping further discovery, as discussed above. The Court therefore orders
that Smartmatic shall amend its disclosures to Interrogatory 20 to include the list of
jurisdictions that will not or may not do business with Smartmatic and supplement it before
the close of all discovery with responsive information from expert discovery. The Court

grants Defendants’ motion as to Interrogatory No. 20.
3. Smartmatic Shall Supplement Its Answers to Interrogatory Nos. 14 and
15 Now, and Shall Supplement Its Answers to Interrogatory Nos. 1, 5,
6, 7, 8, 9, 11, 17, and 18 at the Close of Fact Discovery.

Smartmatic objected to a number of Defendants’ interrogatories, asserting that they
were “premature contention interrogatories.” Defendants move the Court to compel
Smartmatic to respond substantively “with the information presently available to
Smartmatic.” (Defs.’ Mem. Supp. Mot. Compel 16–18.) Defendants argue that without
more complete answers to these interrogatories, Defendants “will be unable to question
witnesses . . . or pursue further investigation or discovery.” (Id. at 17.) Specifically,
Defendants argue that Interrogatory 14 is not a premature contention interrogatory.
The term “contention interrogatory” can refer to several kinds of interrogatories.
Gilmore v. City of Minneapolis, No. 13-CV-1019 (JRT/FLN),

2014 WL 4722488

, at *5 
(D. Minn. Sept. 22, 2014); In re Grand Casinos, Inc. Sec. Litig.,

181 F.R.D. 615, 618

 (D. 
Minn. 1998). But see Kinetic Co. v. Medtronic, Inc., No. 08-CV-6062 (JMR/AJB),

2010 WL 11561275

, at *3 n.1 (D. Minn. Nov. 23, 2010) (finding “no basis in the rules to 
distinguish  contention  interrogatories  from  other  forms  of  discovery”).  This  Court 

understands contention interrogatories to be “questions asking a party to explain the facts 
known to them, if any, that support a claim or defense.” Bakambia v. Schnell, No. 20-CV-
1434 (NEB/KMM),

2021 WL 4622250

, at *10 (D. Minn. Oct. 7, 2021). The purpose of 
such interrogatories is to help the requesting party understand the basis for the claims levied 
against them and prepare a defense.

Id.

 Contention interrogatories can also help narrow the 
issues at trial. Promotional Mktg. Insights, Inc. v. Affiliated Comp. Servs., Inc., No. 11-CV-

2795 (PJS/AJB),

2012 WL 13028115

, at *6 (D. Minn. Sept. 19, 2012); Fed. R. Civ. P. 33, 
advisory committee’s notes to 1970 amendment. When a complaint contains “specific 
allegations . . . the factual basis for those allegations is presumptively discoverable . . . . 
That the Interrogatory is possibly a contention interrogatory does not, alone, alter that 
presumption of discoverability.” United States v. Cameron-Ehlen Grp., Inc., No. 13-CV-
3003 (WMW/DTS),

2019 WL 1453063

, at *2 (D. Minn. Apr. 2, 2019), aff’d sub nom. 

United States ex rel. Fesenmaier v. Cameron-Ehlen Grp., Inc.,

2019 WL 3245003

 (D. 
Minn. July 19, 2019).                                                     
    The Federal Rules permit contention interrogatories, but courts may find that they 
are better answered later in litigation. Fed. R. Civ. P. 33(a)(2). “A contention interrogatory 
will be considered overly broad and unduly burdensome ‘if it seeks “all facts” supporting 

a claim or defense, such that the answering party is required to provide a narrative account 
of its case.’” Shqeirat v. U.S. Airways Grp., Inc., No. 07-CV-1513 (ADM/AJB),

2008 WL 4232018

, at *4 (D. Minn. Sept. 9, 2008) (quoting Moses v. Halstead,

236 F.R.D. 667, 674

 
(D. Kan. 2006)); 8B Charles Alan Wright & Arthur R. Miller, Federal Practice and 
Procedure § 2167 (3d ed. 2022). But overbroad contention interrogatories may be “readily 

corrected by limiting the request to ‘principal or material’ facts” related to an allegation. 
Kinetic Co. v. Medtronic, Inc., No. 08-CV-6062 (JMR/AJB),

2010 WL 11561275

, at *4 
(D. Minn. Nov. 23, 2010) (quotation omitted).                             

    Defendants argue that they seek relevant and proportional information in their 
motion to compel a further response to Interrogatory Nos. 1, 5, 6, 7, 8, 9, 10, 11, 14, 15, 
17, and 18, but they only raise a specific argument as to Interrogatory No. 14. Defendants 
argue that Interrogatory No. 14 is not a contention interrogatory—it states, “[i]n paragraph 
155 of the Complaint, You allege that Smartmatic’s ‘election technology, hardware, and 
software were not used by any other voting technology company during the 2020 U.S. 

election.’ Identify every person with knowledge about the truth of that statement, and 
provide the factual basis for the allegation.” (Defs.’ Mem. Mot. to Compel 17–18; Kaplan 
Decl. Ex. D at 15–16.) Interrogatory No. 15 is similar as it asks Smartmatic to “[i]dentify 
every person with knowledge about the truth of” the allegation that “Smartmatic did not 
work with or assist any other voting technology company during the 2020 U.S. election.” 

(Kaplan Decl. Ex. C at 6.)                                                
    Further, Smartmatic contends that its responses to Defendants’ interrogatories are 
sufficient  because  Smartmatic  referenced  various  paragraphs  of  the  Complaint  that 
correspond to the topics about which Defendants inquire. (Pls.’ Mem. Opp’n Mot. Compel 
18–19.) But referencing the Complaint does not provide Defendants with any discovery 

information and it does not comport with Rule 26’s disclosure requirements  
    The Court finds that the information Defendants seek in Interrogatory Nos. 14 and 
15 is relevant and proportional to the claims and defenses in this lawsuit. Therefore, 
Smartmatic will supplement its responses to Interrogatory Nos. 14 and 15 no later than 30 
days after the date of this Order. As to the remaining interrogatories, the Court will exercise 
its power to delay Smartmatic’s responses to minimize speculation and its attendant 

inefficiencies. When expert discovery concludes, Smartmatic will supplement its answers 
to the Interrogatory Nos. 1, 5, 6, 7, 8, 9, 10, 11, 17, and 18.           
                            CONCLUSION                                   
    Accordingly,  based  on  all  the  files,  records,  and  proceedings  herein,  IT  IS 
HEREBY ORDERED that:                                                      
    1.   Plaintiff’s Motion to Compel (Dkt. No. 140) is GRANTED, as set forth 

         fully above; and                                                
    2.   Defendants’ Motion to Compel (Dkt. No. 146) is GRANTED in part and 
         DENIED in part, as set forth fully above.                       


Date: October 19, 2023              s/  John F. Docherty                 
                                   JOHN F. DOCHERTY                      
                                   United States Magistrate Judge

Trial Court Opinion

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


 SMARTMATIC USA CORP.,           Case No. 22-CV-98 (WMW/JFD)             
 SMARTMATIC INTERNATIONAL                                                
 HOLDING B.V., AND                                                       
 SGO CORPORATION LIMITED,

ORDER

Plaintiffs,

MICHAEL J. LINDELL, AND MY
PILLOW, INC.,

Defendants.

338 F.R.D. 247

, 252 (D. Minn. 2021) (citing 
Hofer v. Mack Trucks, Inc.,

981 F.2d 377, 380

 (8th Cir. 1992)). If the moving party meets 
its initial burden of showing that the requested discovery is relevant, then the burden shifts 
to the party resisting discovery to show either that it is not relevant or that it is unduly 

burdensome. Patterson Dental Supply, Inc. v. Pace, No. 19-CV-1940 (JNE/LIB),

2020 WL 10223625

, at *20 (D. Minn. June 17, 2020). If a party prevails on a motion to compel, the 
court must award that party its expenses in bringing the motion, unless the moving party 
failed to meet and confer, the opposing party’s conduct was “substantially justified,” or it 
would otherwise be unjust to order expenses. Fed. R. Civ. P. 37(a)(5).    

     B. Defamation                                                       
    This is a lawsuit alleging defamation and deceptive trade practices in which federal 
subject-matter jurisdiction is premised on diversity of citizenship. (Suppl. Compl. ⁋ 20, 
Dkt. No. 125.) Federal courts sitting in diversity apply state substantive law and federal 
procedural law. Shady Grove Assocs., P.A. v. Allstate Ins. Co.,

559 U.S. 393, 398

 (2010); 

Erie R. Co. v. Tompkins,

304 U.S. 64, 78

 (1938). The Court will assess the relevancy and 
proportionality of these discovery motions in light of the elements of defamation and 
deceptive trade practices under the substantive law of Minnesota.         
    To prevail on a defamation claim under Minnesota law, Smartmatic must prove 
“that a statement was false, that it was communicated to someone besides [Smartmatic], 

and that it tended to harm [Smartmatic’s] reputation and to lower [it] in the estimation of 
the community.” Rouse v. Dunkley & Bennett, P.A.,

520 N.W.2d 406, 410

 (Minn. 1994). 
Because Smartmatic is a public figure,1 it must also show that Mr. Lindell made the 
statement with “actual malice,” meaning that he knew the statement was false or that he 
recklessly disregarded the truth or falsity of the statement when he made it. (Ord. Denying 
Mot. to Dismiss 6 (quoting New York Times Co. v. Sullivan,

376 U.S. 254

, 279–80 (1964)).) 

    Under  Minnesota  law,  certain  types  of  false  statements  are  presumed  to  be 
defamatory, including accusations of crime and statements that tend to injure a plaintiff in 
its business, trade, or profession. Maethner v. Someplace Safe, Inc.,

929 N.W.2d 868, 875

 
(Minn. 2019). Smartmatic claims that the allegedly false statements of Mr. Lindell (which 
Smartmatic seeks to impute to My Pillow) were defamatory per se because they damaged 

Smartmatic’s reputation in its business. (Suppl. Compl. ¶ 373.) Damages are presumed 
when a plaintiff has shown that a defendant’s statement was defamatory per se, unless the 
defamatory statement was about a matter of public concern, in which case a plaintiff, to 
recover, must show actual reputational harm. Maethner, 929 N.W.2d at 874–75. Because 
“the invalidity of a presidential election as a result of hacking is a matter of public concern,” 

Smartmatic must show that Mr. Lindell made his statements with actual malice and the 

1    Minnesota law regards corporations as “public figures” for defamation law. Judge 
Wright found that Smartmatic, since it consists of three corporations, was a public figure. 
(Ord. Denying Mot. to Dismiss 6, Dkt. No. 52.)                            
statements caused actual reputational harm. (Ord. Denying Mot. to Dismiss 6 (quoting 
Maethner,

929 N.W.2d at 879

).)                                            

    “[T]ruth is an absolute defense to a defamation claim” in Minnesota. Carpenter v. 
Extendicare Health Servs. Inc., No. 15-CV-120 (MJD/JJK),

2015 WL 7729406

, at *7 
(D Minn. Oct. 26, 2015), R&R adopted,

2015 WL 7720477

1. Smartmatic Has Properly Pleaded Its Request for Punitive Damages.

Minn. Stat. § 549

.191–.20. By contrast, the Federal Rules require only “a short and plain statement of 
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).  
    Courts in this District used to require parties seeking punitive damages to follow the 
Minnesota state procedure, that is to forego claiming punitive damages in their opening 
complaint, and to file a motion to amend the complaint later, accompanied by affidavits, to 

add  a  punitive  damages  claim.  These  decisions  were  frequently  premised  on  an 
apprehension that plaintiffs, seeing that punitive damages claims could be asserted more 
easily in federal court than in state court, would forum shop. Zeelan Industries, Inc. v. de 
Zeeuw,

706 F. Supp. 702, 705

 (D. Minn. 1989) (MacLaughlin, J.) (“[P]laintiff’s claim for 
punitive damages should be stricken. In the absence of a conflicting Federal Rule, federal 
courts must apply state law where failure to do so would lead to forum shopping. . . .”); 

Kuehn v. Shelcore,

686 F. Supp. 233, 235

 (D. Minn. 1986) (Devitt, J.) (“[A] party might 
well choose [a forum that does not follow § 549.191] because it provides a tactical, though 
non-dispositive, advantage. In the court’s view, this variation is substantial enough to 
influence forum choice and, under Erie, must be eliminated by applying § 549.191 in this 
federal diversity action.”)                                               
    In Shady Grove, the Supreme Court held that “a Federal Rule governing procedure 

is valid whether or not it alters the outcome of the case in a way that induces forum 
shopping” and allowed a class action lawsuit filed in the Eastern District of New York to 
proceed in federal court under Fed. R. Civ. P. 23 even though a New York state statute 
procedurally prohibited it.

559 U.S. 393

, 416. After Shady Grove held that apprehension 
of forum shopping is not a good reason for preferring state to federal procedural law, the 

majority of courts in this District sitting in diversity looked to Fed. R. Civ. P. 15(a)(2) 
rather  than

Minn. Stat. § 549.191

  for  the  procedural  law  that  sets  out  the  pleading 
requirements for a punitive damages claim.2                               


2    The undersigned magistrate judge has previously followed Rule 15, rather than

Minn. Stat. § 549.191

, in deciding whether to allow amendment of a complaint to add a 
punitive damages claim. Russ v. Ecklund Logistics Inc.,No. 19-CV-2719 (DSD/JFD),

2022 WL 856020

 at *4 (D. Minn. Mar. 23, 2022). The other judges who have followed Rule 15 
are the Honorable Eric C. Tostrud, the Honorable John R. Tunheim, the Honorable Ann D. 
Montgomery, the Honorable Nancy E. Brasel, the Honorable Kate M. Menendez, the 
Honorable  Elizabeth  Cowan  Wright,  the  Honorable  Dulce  J.  Foster,  the  Honorable 
Franklin L. Noel, the Honorable Steven E. Rau, the Honorable Hildy Bowbeer, and the 
Honorable Becky R. Thorson. See Shank v. Carleton Coll., No. 16-CV-1154 (PJS/HB), 
    Here, Smartmatic included a claim for punitive damages in its complaint and so 
does not need to amend its pleadings to conform with the heightened pleading standard 

required under Minnesota law. Smartmatic argues that it properly included the claim at the 
outset of this lawsuit, given the recent trend in this District for courts sitting in diversity

2018 WL 4961472

, at *4 (D. Minn. Oct. 15, 2018) (Bowbeer, J.), aff’d, No. 16-CV-1154 
(ECT/HB),

329 F.R.D. 610

 (D. Minn. 2019) (Tostrud, J.); Mgmt. Registry, Inc v. A.W. 
Companies, Inc., No. 17-CV-5009 (JRT/KMM),

2020 WL 487315

, at *2–3 (D. Minn. Jan. 
30, 2020) (Tunheim, J.); Urbieta v. Mentor Corp., No. 13-CV-1927 (ADM/LIB),

2018 WL 3475484

, at *3 (D. Minn. July 19, 2018) (Montgomery, J.); Am. Achievement Corp. v. 
Jostens, Inc.,

622 F. Supp. 3d 749

, 765 (D. Minn. 2022) (Brasel, J.); Mgmt. Registry, Inc. 
v. A.W. Companies, Inc., No. 17-CV-5009 (JRT/KMM),

2019 WL 7838280

, at *13 (D. 
Minn. Sept. 12, 2019) (Menendez, J.), R&R adopted in part,

2020 WL 487315

 (D. Minn. 
Jan. 30, 2020); Orange Rabbit, Inc. v. Franchoice, Inc., No. 19-CV-687 (MJD/ECW),

2020 WL 2191947

, at *2 (D. Minn. May 6, 2020) (Cowan Wright, J.); McNamara v. Kuehne, 
No. 22-CV-47 (NEB/DJF),

2023 WL 2189980

, at *2 (D. Minn. Feb. 6, 2023) (Foster, J.), 
R&R adopted,

2023 WL 2189055

 (D. Minn. Feb. 23, 2023); Rogers v. Mentor Corp., No. 
12-CV-2602 (SRN/SER),

2018 WL 2215519

, at *6 (D. Minn. May 15, 2018) (Rau. J.), 
aff’d sub nom. Urbieta v. Mentor Corp., No. 13- CV-1927 (ADM/LIB),

2018 WL 3475484

 
(D. Minn. July 19, 2018); Ramirez v. AMPS Staffing, Inc., No. 17- CV-5107 (DWF/BRT),

2018 WL 1990031

, at *5–6 (D. Minn. Apr. 27, 2018) (Thorson, J.); In re Bair Hugger 
Forced Air Warming Devices Prods. Liab. Litig., No. 15-MDL-2666 (JNE/FLN),

2017 WL 5187832

, *5–6 (D. Minn. July 27, 2017) (Noel, J.); cf. Selective Ins. Co. of S.C. v. Sela,

353 F. Supp. 3d 847

, 855–63 (D. Minn. 2018) (Schiltz, C.J.) (calling previous practice of 
applying

Minn. Stat. § 549.191

 and not Rule 15 “troubling,” re-examining a similar 
practice regarding

Minn. Stat. § 604.18

, and finding that Federal Rules, not state statute 
controlled). But see Johannessohn v. Polaris Indus., Inc., No. 16-CV-3348 (WMW/LIB),

2022 WL 3585152

, at *2 (D. Minn. Aug. 22, 2022) (holding that parties must conform to

Minn. Stat. § 549.191

); Inline Packaging, LLC v. Graphic Packaging Int’l, LLC, No. 15-
CV-3183 (ADM/LIB),

2018 WL 9919941

, at *5, *31 (D. Minn. Mar. 8, 2018) (holding 
that parties seeking to add a punitive damages claim must follow the procedure set out in

Minn. Stat. § 549.191

), relevant objs. overruled as moot,

351 F. Supp. 3d 1187

 (D. Minn. 
2018), aff’d on other grounds,

962 F.3d 1015

 (8th Cir. 2020).             
jurisdiction to apply Rule 15, rather than Minnesota Statute § 549.191 in analyzing whether 
a claim for punitive damages is properly pleaded. (Pls.’ Mem. Supp. 2d Mot. Compel 9.)3  

    Defendants contend that Smartmatic has not properly pleaded its claim for punitive 
damages and therefore is not entitled to discovery related to that claim. Indeed, Defendants 
assert that § 549.191 is a substantive law that “created a clear and convincing evidentiary 
threshold, which, if not met, is dispositive of punitive damages before trial,” and thus 
Defendants assert that the Shady Grove analysis does not apply here. (Defs.’ Mem. Opp’n 
Mot.  Compel  5.)  And,  according  to  Defendants,  even  if  §§ 549.191  and  549.20  are 

procedural, they do not conflict with the Federal Rules. (Id. at 4.) But the reasoning of the 
cases on which Defendants rely for this argument has been rejected. For example, the 
analysis in Inline Packaging, LLC v. Graphic Packaging Int’l, LLC, No. 15-CV-3183 
(ADM/LIB),

2018 WL 9919941

, at *31 (D. Minn. Mar. 8, 2018) was later rejected by 
Speed RMG Partners, LLC v. Arctic Cat Sales Inc., No. 20-CV-609 (NEB/LIB),

2021 WL 7286933

, at *3–6 (D. Minn. Aug. 6, 2021) (Brasel, J.).                    
    The Court determines that Rule 15 and § 549.191 are conflicting procedural rules. 
See Speed RMG Partners,

2021 WL 7286933

damages request is properly pleaded.
2. Defendants Must Produce Documents Relating to Mr. Lindell’s
Finances.

727 N.W.2d 153, 161

 (Minn. Ct. App. 2007).)4 Even so, 
Smartmatic stated that it would provide a damages computation related to reputational 

harm when its expert report was available, because “Smartmatic possesses neither the 
underlying data nor the expert testimony through which it will compute its damages.” (Pls.’ 




4    At this juncture, the Court considers only whether a damages claim is properly 
included in the Complaint, not whether Smartmatic may recover such damages in the event 
that a jury would reach that decision.                                    
Mem Opp’n Mot to Compel 14.) Initial expert reports were due on September 22, 2023. 
(2d Am. Pretrial Scheduling Order, Dkt. No. 168.)                         

    Smartmatic further argues that it cannot compute the economic damages while “in 
the middle of fact discovery.” (Id. at 15.) To recover economic damages, Smartmatic must 
show that Defendants were a “substantial factor” in causing Smartmatic’s losses. See 
Longbehn,

727 N.W.2d at 160

claims, with the understanding that the estimates may change during expert discovery.
Henne v. Great River Reg’l Libr., No. 19-CV-2758 (WMW/LIB),

2021 WL 6804560

category of damages” as required by Rule 26(a)(1)(A)(iii).
2. Smartmatic Shall Substantively Answer Interrogatory No. 20.

2010 WL 11534503

, at *3 (D. Minn. Oct. 21, 2010), aff’d,

2010 WL 4286330

 

(D. Minn. Oct. 25, 2010)). Without a computation of damages, Defendants argue that they 
cannot  adequately  prepare  a  defense.  (Defs.’  Mem.  Supp.  Mot.  to  Compel  12–17.) 
Additionally, Defendants contend that it is improper for Smartmatic to generally refer 
Defendants to all the documents that it claims support its damages, and that instead 
Smartmatic  must  refer  to  the  specific  documents  that  it  used  to  reach  its  damages 

calculations and those documents on which its expert relied. (Id. (citing Gacek,

2010 WL 11534503

2014 WL 4722488

, at *5 
(D. Minn. Sept. 22, 2014); In re Grand Casinos, Inc. Sec. Litig.,

181 F.R.D. 615, 618

 (D. 
Minn. 1998). But see Kinetic Co. v. Medtronic, Inc., No. 08-CV-6062 (JMR/AJB),

2010 WL 11561275

, at *3 n.1 (D. Minn. Nov. 23, 2010) (finding “no basis in the rules to 
distinguish  contention  interrogatories  from  other  forms  of  discovery”).  This  Court 

understands contention interrogatories to be “questions asking a party to explain the facts 
known to them, if any, that support a claim or defense.” Bakambia v. Schnell, No. 20-CV-
1434 (NEB/KMM),

2021 WL 4622250

, at *10 (D. Minn. Oct. 7, 2021). The purpose of 
such interrogatories is to help the requesting party understand the basis for the claims levied 
against them and prepare a defense.

Id.

 Contention interrogatories can also help narrow the 
issues at trial. Promotional Mktg. Insights, Inc. v. Affiliated Comp. Servs., Inc., No. 11-CV-

2795 (PJS/AJB),

2012 WL 13028115

, at *6 (D. Minn. Sept. 19, 2012); Fed. R. Civ. P. 33, 
advisory committee’s notes to 1970 amendment. When a complaint contains “specific 
allegations . . . the factual basis for those allegations is presumptively discoverable . . . . 
That the Interrogatory is possibly a contention interrogatory does not, alone, alter that 
presumption of discoverability.” United States v. Cameron-Ehlen Grp., Inc., No. 13-CV-
3003 (WMW/DTS),

2019 WL 1453063

, at *2 (D. Minn. Apr. 2, 2019), aff’d sub nom. 

United States ex rel. Fesenmaier v. Cameron-Ehlen Grp., Inc.,

2019 WL 3245003

 (D. 
Minn. July 19, 2019).                                                     
    The Federal Rules permit contention interrogatories, but courts may find that they 
are better answered later in litigation. Fed. R. Civ. P. 33(a)(2). “A contention interrogatory 
will be considered overly broad and unduly burdensome ‘if it seeks “all facts” supporting 

a claim or defense, such that the answering party is required to provide a narrative account 
of its case.’” Shqeirat v. U.S. Airways Grp., Inc., No. 07-CV-1513 (ADM/AJB),

2008 WL 4232018

, at *4 (D. Minn. Sept. 9, 2008) (quoting Moses v. Halstead,

236 F.R.D. 667, 674

 
(D. Kan. 2006)); 8B Charles Alan Wright & Arthur R. Miller, Federal Practice and 
Procedure § 2167 (3d ed. 2022). But overbroad contention interrogatories may be “readily 

corrected by limiting the request to ‘principal or material’ facts” related to an allegation. 
Kinetic Co. v. Medtronic, Inc., No. 08-CV-6062 (JMR/AJB),

2010 WL 11561275

, at *4 
(D. Minn. Nov. 23, 2010) (quotation omitted).                             

    Defendants argue that they seek relevant and proportional information in their 
motion to compel a further response to Interrogatory Nos. 1, 5, 6, 7, 8, 9, 10, 11, 14, 15, 
17, and 18, but they only raise a specific argument as to Interrogatory No. 14. Defendants 
argue that Interrogatory No. 14 is not a contention interrogatory—it states, “[i]n paragraph 
155 of the Complaint, You allege that Smartmatic’s ‘election technology, hardware, and 
software were not used by any other voting technology company during the 2020 U.S. 

election.’ Identify every person with knowledge about the truth of that statement, and 
provide the factual basis for the allegation.” (Defs.’ Mem. Mot. to Compel 17–18; Kaplan 
Decl. Ex. D at 15–16.) Interrogatory No. 15 is similar as it asks Smartmatic to “[i]dentify 
every person with knowledge about the truth of” the allegation that “Smartmatic did not 
work with or assist any other voting technology company during the 2020 U.S. election.” 

(Kaplan Decl. Ex. C at 6.)                                                
    Further, Smartmatic contends that its responses to Defendants’ interrogatories are 
sufficient  because  Smartmatic  referenced  various  paragraphs  of  the  Complaint  that 
correspond to the topics about which Defendants inquire. (Pls.’ Mem. Opp’n Mot. Compel 
18–19.) But referencing the Complaint does not provide Defendants with any discovery 

information and it does not comport with Rule 26’s disclosure requirements  
    The Court finds that the information Defendants seek in Interrogatory Nos. 14 and 
15 is relevant and proportional to the claims and defenses in this lawsuit. Therefore, 
Smartmatic will supplement its responses to Interrogatory Nos. 14 and 15 no later than 30 
days after the date of this Order. As to the remaining interrogatories, the Court will exercise 
its power to delay Smartmatic’s responses to minimize speculation and its attendant 

inefficiencies. When expert discovery concludes, Smartmatic will supplement its answers 
to the Interrogatory Nos. 1, 5, 6, 7, 8, 9, 10, 11, 17, and 18.           
                            CONCLUSION                                   
    Accordingly,  based  on  all  the  files,  records,  and  proceedings  herein,  IT  IS 
HEREBY ORDERED that:                                                      
    1.   Plaintiff’s Motion to Compel (Dkt. No. 140) is GRANTED, as set forth 

         fully above; and                                                
    2.   Defendants’ Motion to Compel (Dkt. No. 146) is GRANTED in part and 
         DENIED in part, as set forth fully above.                       


Date: October 19, 2023              s/  John F. Docherty                 
                                   JOHN F. DOCHERTY                      
                                   United States Magistrate Judge

Reference

Status: Unknown