Imagenetix, Inc. v. Robinson Pharma, Inc. et al

Filing 92

ORDER ACCEPTING REPORT AND RECOMMENDATIONS of United States Magistrate Judge With One Modification by Judge Josephine L. Staton: Accordingly, IT IS ORDERED THAT: The Report and Recommendation is generally approved and accepted, along with the additio nal adverse inference language provided for in this Order; Plaintiff's Motion (Doc. 69) is granted only with respect to the issuance of the adverse inference instruction; and The Clerk serve copies of this Order on the parties. See document for further information. (lwag)

1
2
3
4
5
6
7
8
9
10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA

12
13
14

IMAGENETIX, INC.,
Plaintiff,

15
16
17

v.
ROBINSON PHARMA, INC., et al.,
Defendants.

18
19

)
)
)
)
)
)
)
)
)
)
)
)

Case No. SACV 15-0599 JLS (JCGx)
ORDER ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE WITH
ONE MODIFICATION

20
21

Pursuant to 28 U.S.C. § 636, the Court has reviewed Plaintiff’s Motion for

22

Default Judgement for Discovery Violations (“Motion”) (Doc. 69), the Magistrate

23

Judge’s Report and Recommendation (“R&R”) (Doc. 87), Plaintiff’s Objections to the

24

R&R (“Objections”) (Doc. 88), Defendants’ Response in favor of the Report and

25

Recommendations (Doc. 89), as well as the remaining record, and has made a de novo

26

determination.

27
28

Plaintiff’s Objections generally reiterate the arguments made in the Motion.
There are three issues, however, that warrant brief discussion here.
1

1

First, Plaintiff claims that the recommended adverse inference instruction

2

“simply informs the jury of only some of Defendants’ discovery shortcomings” and

3

“does not address . . . Defendants’ failure to produce marketing materials or emails.”

4

(Objections at 3.) Notably, and as an initial matter, Plaintiff did not raise such

5

shortcomings in its request for an adverse instruction. (See Mot. at 24 n.37 (seeking an

6

adverse instruction with respect to induced infringement and sales of Accused Products

7

only).)

8
9

Regardless, the proposed instruction sufficiently covers all of Defendants’
discovery failures related to the Accused Products, including the non-production of

10

marketing and promotional documents, as it states that “Defendants failed to produce

11

complete and accurate data related to the Accused Products . . . .” (See R&R at 7); cf.

12

also Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1147 n.10 (9th Cir. 2011)

13

(“[T]he district court did not abuse its discretion when it declined to use the exact

14

wording [plaintiff] requested for the adverse inference instruction.”). To tread into the

15

minutia of Defendants’ discovery faults, especially when Plaintiff itself could have

16

been more diligent during discovery, (see R&R at 6-7), may prove excessive and

17

unduly prejudicial.

18

Second, Plaintiff claims that the proposed adverse inference instruction “fails to

19

instruct the jury that it can or should draw an adverse inference from Defendants’

20

misconduct.” (Objections at 7-8.) It is well established that “[t]he Court has broad

21

discretion to fashion, on a case-by-case basis, an appropriate adverse inference jury

22

instruction for [discovery violations].” Dong Ah Tire & Rubber Co. v. Glasforms, Inc.,

23

2009 WL 1949124, at *10 (N.D. Cal. July 2, 2009), modified, 2009 WL 2485556

24

(N.D. Cal. Aug. 12, 2009); see also DeCastro v. Kavadia, 309 F.R.D. 167, 182

25

(S.D.N.Y. 2015) (“[T]he particular nature of the [adverse inference] instruction . . .

26

lie[s] within the discretion of the court. Upon finding that evidence was wrongfully

27

withheld or destroyed, a court ‘[may] . . . simply [tell] the jury those facts and nothing

28

more . . . .’” (internal citations omitted)). After conducting its de novo review, the
2

1

Court believes that the recommended adverse inference instruction is largely

2

appropriate. The Court, however, will add the following sentence at the end of the

3

recommended instruction: “You may infer that Defendants did not produce this

4

information to Plaintiff because they believed that this information would help Plaintiff

5

and hurt Defendants.”

6

Third, Plaintiff argues that the reasons given in the R&R for not granting

7

attorneys’ fees were insufficient. (Objections at 10-11.) Specifically, the Magistrate

8

Judge noted that an award of expenses, including attorneys’ fees, “would be

9

disproportionate to the harm caused by Defendants’ actions, in light of the adverse

10

inference instruction already recommended.” (See R&R at 7.) Despite Plaintiff’s

11

objections, and as alluded to above, proportionality must be considered in issuing

12

sanctions. (See R&R at 5); see also Google Inc. v. Am Blind & Wallpaper Factory,

13

Inc., 2007 WL 1848665, at *6 (N.D. Cal. June 27, 2007) (finding that courts must

14

avoid issuing discovery sanctions that are “out of all proportion to the actual harm

15

wrought by the failure to meet [] discovery obligations”); Guerrero v. McClure, 2011

16

WL 4566130, at *3 (E.D. Cal. Sept. 29, 2011) (finding that “an award of . . .

17

attorneys[’] fees would be unjust” because such an imposition would not be

18

proportional based on the conduct of the non-moving party). As such, in light of

19

Defendants’ conduct and the proposed adverse inference instruction, attorneys’ fees

20

will not be awarded.

21
22

Accordingly, IT IS ORDERED THAT:

23

1.

The Report and Recommendation is generally approved and accepted,

24

along with the additional adverse inference language provided for in this

25

Order;

26

//

27

//

28

//
3

1

Plaintiff’s Motion (Doc. 69) is granted only with respect to the issuance of the

2

adverse inference instruction;

3

2.

The Clerk serve copies of this Order on the parties.

4
5
6
7
8

DATED: February 13, 2017

_______________
HON. JOSEPHINE L. STATON
UNITED STATES DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4