The decided cases, and the commentators, are consentient in the view that Rule 37(b)(2)'s plain language means exactly what it says. See, e.g., Badalamenti v. Dunham's, Inc. 896 F.2d 1359, 1362 (Fed. Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 142, 112 L.Ed.2d 109 (1990); Salahuddin v. Harris, 782 F.2d 1127, 1131 (2d Cir. 1986); Laclede Gas Co. v. G. W. Warnecke Corp., 604 F.2d 561, 565 (8th Cir. 1979); 4A J. Moore J. Lucas, Moore's Federal Practice ¶ 37.03[2], at 37-62 to 37-64 (2d ed. 1991); 8 C. Wright A. Miller, Federal Practice and Procedure § 2289, at 790 (1970). In this case, therefore, the propriety of dismissing plaintiffs' complaint under Rule 37(b)(2) hinges on the answer to the following question: Did either Ward's refusal to answer the tax exemption questions during his deposition or the plaintiffs' failure to produce the Impex documents transgress "an order to provide or permit discovery," Fed.R.Civ.P. 37(b)(2), then in effect?

That sanction hasn't yet been approved by the district court and isn't before us. Relying on Badalamenti v. Dunham's, Inc., 896 F.2d 1359 (Fed. Cir. 1990), defendants contend that the court abused its discretion because they had objected to the discovery requests as ambiguous, and plaintiffs never "tested" those objections. But plaintiffs' motion to compel discovery is the only testing that Rule 37(a)(4) requires.

[ 32] Relying on Badalamenti v. Dunham's, Inc., 896 F.2d 1359 (Fed. Cir. 1990), defendants contend that the court abused its discretion because they had objected to the discovery requests as ambiguous, and plaintiffs never "tested" those objections. But plaintiffs' motion to compel discovery is the only testing that Rule 37(a)(4) requires.

The imposition of sanctions for misconduct during discovery is not unique to this court's jurisdiction. See, e.g., Wexell v. Komar Indus., Inc., 18 F.3d 916, 919, 29 USPQ2d 2017, 2020 (Fed. Cir. 1994) (reviewing discovery sanctions under Sixth Circuit standards); Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1362, 13 USPQ2d 1967, 1970 (Fed. Cir. 1990) (same). Accordingly, this court applies the law of the pertinent regional circuit, in this case the United States Court of Appeals for the Sixth Circuit. See Pro-Mold Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1574, 37 USPQ2d 1626, 1631 (Fed. Cir. 1996).

This case presents a procedural question not unique to patent law; thus, the law of the Ninth Circuit applies. See Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1362, 13 USPQ2d 1967, 1970 (Fed. Cir. 1990); Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1574-75, 223 USPQ 465, 471 (Fed. Cir. 1984). In reviewing Rule 37 sanctions, the question is whether the district court abused its discretion.

Buergofol is correct that it was not permitted under the Federal Rules of Civil Procedure to “simply fail to produce responsive documents that [it] considers to be trade secrets[,]” but the Rules do permit a party to serve objections to a request for production without ever filing for a protective order. Docket 75 at 10; see Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1362 (Fed. Cir. 1990) (explaining that “[t]he plain terms of the rules of civil procedure” give parties responding to document requests four options: (1) agree to produce the documents, (2) object to the request, (3) move for a protective order, or (4) ignore the request).

The courts of appeals disagree about whether an incomplete or evasive response to written discovery-as distinguished from a total failure to respond-may provide a basis for sanctions under Fed.R.Civ.P. 37(d) or, instead, must first be addressed by a motion to compel under Fed.R.Civ.P. 37(a)(3)(B). See Badalementi v. Dunham's Inc., 896 F.2d 1359, 1363 (Fed. Cir. 1990) (collecting cases). For example, in Fox v. Studebaker-Worthington, Inc., 516 F.2d 989 (8th Cir. 1975), the Eighth Circuit concluded that “[t]he provisions of Rule 37(d) with regard to interrogatories do not apply when the failure to comply is anything less than a total failure to respond.”

The courts of appeals disagree about whether an incomplete or evasive response to written discovery-as distinguished from a total failure to respond-may provide a basis for sanctions under Fed.R.Civ.P. 37(d) or, instead, must first be addressed by a motion to compel under Fed.R.Civ.P. 37(a)(3)(B). See Badalementi v. Dunham's Inc., 896 F.2d 1359, 1363 (Fed. Cir. 1990) (collecting cases). For example, in Fox v. Studebaker-Worthington, Inc., 516 F.2d 989 (8th Cir. 1975), the Eighth Circuit concluded that “[t]he provisions of Rule 37(d) with regard to interrogatories do not apply when the failure to comply is anything less than a total failure to respond.”

The Court has considered the parties' arguments regarding the imposition of sanctions under Fed. R. Civ. P. 37. There is no evidence indicating that Calvert's responses to discovery have so impeded Madden's discovery efforts as to constitute a failure to comply with discovery within the meaning of Rule 37(d). SeeJackson by Jackson v. Nissan Motor Corp. in USA, No. 88-6132, 1989 WL 128639, at *5 (6th Cir. Oct. 30, 1989); Badalamenti v. Dunham's, Inc., 896 F.2d 1359, 1363 (Fed. Cir. 1990) (document requests); Laukus v. Rio Brands, Inc., 292 F.R.D. 485, 502 (N.D. Ohio 2013); Bell v. Auto. Club of Mich., 80 F.R.D. 228, 232 (1978) appeal dismissed, 601 F.2d 587 (6th Cir.), cert. denied, 442 U.S. 918, 99 S.Ct. 2839, 61 L.Ed.2d 285 (1979). For this reason, the undersigned concludes that Madden is not entitled to sanctions under Rule 37(d).

Hewitt charges that it is Plaintiffs, not Hewitt, that have misconstrued the Rule when they argue that Rule 37(d) relates only to Rule 37 discovery sanctions, which they are not seeking here. Badalamenti v. Dunham's Inc., 896 F.2d 1359, 1362 (Fed.Cir.1990) (" The plain terms of the rules of civil procedure show that a party served with a document request has four options: (1) respond to the document request by agreeing to produce documents as requested (Fed.R.Civ.P. 34(b)); (2) respond to the document request by objecting (Fed.R.Civ.P. 34(b)); (3) move for a protective order (Fed.R.Civ.P. 26(c) and 37(d)); or (4) ignore the request." ).