Stiles v. Wal-Mart Stores Inc, et al
Filing
323
ORDER signed by Magistrate Judge Dennis M. Cota on 1/17/20 DENYING 279 Motion to Compel, GRANTING IN PART 280 Motion to Compel, GRANTING IN PART 281 Motion to Compel, GRANTING 288 Motion for leave to take depositions in excess of ten and DENYING 308 Motion to Compel. (Kaminski, H)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
SHARIDAN STILES, et al.,
12
Plaintiffs,
13
14
No. 2:14-CV-2234-MCE-DMC
v.
ORDER
WALMART, INC., et al.,
15
Defendants.
16
17
AND RELATED COUNTER-ACTIONS
18
19
Plaintiffs, who are proceeding with retained counsel, bring this civil action
20
alleging intellectual property and antitrust claims. Pending before the court are the following five
21
discovery motions:
22
Motions Filed by Plaintiffs
23
ECF No. 279
Motion to compel Walmart to provide further responses to:
- Requests for production, set one (served August 17, 2018).
- Interrogatories, set one (served January 8, 2019).
25
ECF No. 288
Motion for leave to take deposition in excess of ten.
26
ECF No. 308
Motion to compel Walmart to provide further responses to
interrogatories, set two (served November 5, 2019).
24
27
28
1
1
Motions Filed by Walmart
2
ECF No. 280
Motion to compel Plaintiffs to provide further responses to
requests for production, set one (served March 21, 2019).
ECF No. 281
Motion to compel Plaintiffs to provide further responses to
interrogatories, set one (service date not provided).
3
4
The parties have filed the following joint statements regarding the discovery
5
6
disputes:
ECF No. 284, 297
Joint statement and plaintiffs’ supplement related to ECF
No. 279 (plaintiffs’ motion to compel further responses to
requests for production and interrogatories, set one).
ECF Nos. 283, 313
Joint statements related to ECF No. 280 (Walmart’s motion
to compel further responses to requests for production, set
one).
ECF Nos. 282, 314
Joint statements related to ECF No. 281 (Walmart’s motion
to compel further responses to interrogatories, set one).
ECF No. 317
7
Joint statement related to ECF No. 288 (plaintiffs’ motion
for leave to take deposition in excess of ten) and ECF No.
308 (plaintiffs’ motion to compel further responses to
interrogatories, set two).
8
9
10
11
12
13
14
A number of documents, largely consisting of specific discovery responses subject
15
16
to a protective order, have been filed on the public docket with redactions and/or conditionally
17
under seal and are the subject of various requests for leave to file documents under seal. See ECF
18
Nos. 285, 289, 293, 294, 295, 296, 298, 315, 318, 319, 320, and 321 (Notices of Requests to Seal
19
and responses thereto). These requests to seal and responses thereto will be addressed by separate
20
order.
The court heard arguments relating to plaintiff’s motion to compel Walmart to
21
22
provide further responses to requests for production, set one, on December 11, 2019, and issued
23
its order on December 19, 2019. See ECF No. 302 (Clerk’s Minutes of Hearing) and 307 (Order).
24
Since the December 19, 2019, hearing, plaintiffs have presented no arguments or briefing
25
concerning the need for further court intervention with respect to their requests for production, set
26
one.
27
///
28
///
2
1
2
I. BACKGOUND
A.
Summary of Plaintiffs’ Factual Allegations
This action proceeds on plaintiffs’ fourth amended complaint. See ECF No. 142.
3
4
As set forth by plaintiffs in the various joint statements, plaintiffs claim Stiles is the inventor of
5
the Stiles Razor, a narrow-width-blade razor used for “detailed shaving applications.” See e.g.
6
ECF No. 284, pg. 12. In 2003, Stiles began courting Walmart as a potential buyer of the Stiles
7
Razor. See id. Ultimately, Walmart agreed to a test run of the Stiles Razor, which was
8
successful. See id. Walmart places the Stiles Razor in about 2,000 Walmart stores and sales
9
were outstanding. See id. Defendants, however, colluded with plaintiffs’ competitors and used
10
its market power to eliminate the Stiles Razor from the market in favor of a knock-off version of
11
the Stiles Razor. See id.
12
B.
Summary of Plaintiffs’ Legal Claims
13
Plaintiffs allege the following legal theories:
14
First Claim
Violation of the Sherman Act, 15 U.S.C. § 1.
15
Second Claim
Violation of California’s Cartwright Antitrust Act.
16
Third Claim
Patent infringement (the ‘468 patent).
17
Fourth Claim
Patent infringement (the ‘329 patent).
18
Fifth Claim
Trade dress infringement in violation of the Lanham Act.
19
Sixth Claim
False advertising and false association in violation of the
Lanham Act.
Seventh Claim
Intentional interference with prospective economic
advantage.
20
21
22
23
24
See ECF No. 142, pgs. 31-38.
C.
Summary of Relevant Procedural History
On August 10, 2018, the court issued a stipulated discovery and scheduling order.
25
See ECF No. 146 (Stipulated Order). Pursuant to that order, fact discovery was set to close on
26
July 10, 2019, and dispositive motions were set to be filed within 150 days after the close of fact
27
discovery. See id. at 3-4. On June 18, 2019, the District Judge issued an order extending all
28
operative case deadlines, as outlined in the court’s August 10, 2018, discovery and scheduling
3
1
order, by six months to January 10, 2020. See ECF No. 229. Pursuant to further stipulation, the
2
time to conduct fact witness depositions has been extended to and including February 15, 2020.
3
See ECF No. 291 (Stipulated Order). The docket does not reflect any requests for or orders
4
approving further modification of the August 10, 2018, scheduling order.
5
6
Thus, all fact discovery, except fact depositions, closed on or about January 10,
2020. The time to conduct fact depositions has been extended to February 15, 2020.
7
8
II. ISSUES PRESENTED
9
A.
10
Plaintiffs’ Motions (ECF Nos. 279, 288, and 308)
1.
11
Motion to Compel Walmart to Provide Further Responses to
Requests for Production, Set One, and Interrogatories, Set One
12
Plaintiffs seek resolution of the following six issues:
13
Issues Relating to Requests for Production, Set One
14
One:
15
16
Whether Walmart should be compelled to provide further responses
and documents relating to plaintiffs’ requests for production nos. 4,
7-8, 10-12, 13, 15, 20-21, 25-26, 30-31, and 44.
Two: Whether Walmart should be compelled to produce documents
withheld from plaintiffs due to an agreement between counsel
limiting discovery.
17
18
Three: Whether redactions to produced documents based on relevancy or
business confidentiality are proper.
19
21
Four: Whether Walmart should be compelled to produce supplemental
responses to state the bases for withholding documents relating to
plaintiffs’ requests for production nos. 1-2, 4-16, 20-21. 25-31, 3944, 49, and 55-56.
22
Issues Relating to Interrogatories, Set One
23
Five: Whether Walmart should be compelled to supplement their responses
to plaintiffs’ interrogatories nos. 4 and 5.
20
24
Six:
25
26
See ECF No. 279, pg. 2 (Notice of Motion); see also ECF No. 284 (Joint
Statement).
27
28
Whether Walmart should be compelled to supplement their responses
to plaintiffs’ interrogatories nos. 7-11 and 13-15.
///
4
1
Plaintiffs have withdrawn their motion with respect to issue three. See ECF No.
2
292. Issues relating to plaintiffs’ interrogatories, set one – issues five and six – are currently
3
before the court. See id. The remaining issues relating to requests for production – issues one,
4
two, and four – were the subject of a hearing held on December 11, 2019. Plaintiffs’ motion as to
5
these issues was addressed in the court’s December 19, 2019, order, see ECF No. 307, and
6
appears to be resolved.
7
2.
8
9
Motion to Compel Walmart to Provide Further Responses to
Interrogatories, Set Two
Plaintiffs seek an order compelling Walmart to provide substantive response to
10
three interrogatories – Nos. 16, 17, and 18 – they served as set two. See ECF No. 380 (Notice of
11
Motion); see also ECF No. 317 (Joint Statement).
12
3.
Motion for Leave to Take Depositions in Excess of Ten
13
Plaintiffs seek an order authorizing them to take more than the maximum ten
14
deposition allowed under the Federal Rules of Civil Procedure without leave of court. See ECF
15
No. 288 (Notice of Motion); see also ECF No. 317 (Joint Statement).
16
B.
17
Walmart’s Motions (ECF Nos. 280 and 281)
1.
18
Motion to Compel Plaintiffs to Provide Further Responses to
Requests for Production, Set One
19
Walmart identifies the following remaining issues:
20
One:
21
Two: Whether plaintiffs should be compelled to produce financial data.
22
See ECF No. 280 (Notice of Motion); see also ECF Nos. 283, 313 (Joint
Statements).
23
24
///
25
///
26
///
27
///
28
Whether plaintiffs should be compelled to produce tax records.
///
5
1
2.
Motion to Compel Plaintiffs to Provide Further Responses to
Interrogatories, Set One
2
3
Walmart identifies the following remaining issues:
4
One:
5
Whether plaintiffs should be compelled to provide further
supplemental responses to interrogatory nos. 15-18 regarding an
alleged agreement between Walmart and defendant American
International Industries, Inc.
6
Two: Whether plaintiffs should be compelled to provide a further
supplemental response to interrogatory no. 20 regarding the product
market alleged in the complaint
7
8
Three: Whether plaintiffs should be compelled to provide further
supplemental responses to interrogatory nos. 5-7, 10, and 21 regarding
sales of the Stiles Razor.
9
10
Four: Whether plaintiffs’ assertion of a global privilege objection violates
Federal Rule of Civil Procedure 33(b)(4) requiring objections to be
stated with specificity.
11
12
Five: Whether plaintiffs should be precluded from offering or relying on
information or facts responsive to interrogatory nos. 1-14 and 19-21
that has not been provided in any of their responses to these
interrogatories.
13
14
15
See ECF No. 281 (Notice of Motion); see also ECF Nos. 282, 314 (Joint
Statements).
16
17
III. DISCUSSION
18
19
A.
Plaintiffs’ Motion to Compel Walmart to Provide Further Responses to
Interrogatories, Set One (ECF No. 279)
20
21
Plaintiffs identify two issues relating to Walmart’s responses to interrogatories, set
22
one. See ECF No. 279, pg. 2 (Notice of Motion); see also ECF No. 284 (Joint Statement).
23
Specifically, the following questions are before the court (identified as issues five and six in
24
plaintiffs’ motion and issues five, six, and seven in the parties’ joint statement):
25
Five: Whether Walmart should be compelled to supplement their responses
to plaintiffs’ interrogatories nos. 4 and 5.
26
Six:
27
28
Whether Walmart should be compelled to supplement their responses
to plaintiffs’ interrogatories nos. 7-11 and 13-15.
See id.
6
1
Plaintiffs propounded interrogatories, set one, including interrogatory nos. 4-5, 7-
2
11, and 13-15, on January 8, 2019. See ECF No. 284, pg. 9. Walmart responded on February 7,
3
2019. See id. at 9, 92-93. On April 15, 2019, Walmart provided supplemental responses. See id.
4
at 9, 97. Plaintiffs argue Walmart’s responses to interrogatory nos. 4 and 5 are incomplete.
5
Plaintiffs ask the court to direct Walmart to supplement its responses to interrogatory nos. 4-5, 7-
6
11, and 13-15. Walmart states that, on December 2, 2019, it informed plaintiffs’ counsel that it
7
will supplement Walmart’s responses to address plaintiff’s concerns on or before December 13,
8
2019. See ECF No. 284, pgs. 95, 98, and 105.
Given Walmart’s representation that supplemental responses would be served on
9
10
or before December 13, 2019, given counsel’s representation at the hearing that supplemental
11
responses were indeed served on December 13, 2019, and that they are acceptable to plaintiffs,
12
and given the lack of any follow-up motion to compel or joint statement concerning supplemental
13
responses, plaintiffs’ motion with respect to Walmart’s responses to their first set of
14
interrogatories is resolved and will be denied as moot.
15
B.
16
17
Plaintiffs’ Motion to Compel Walmart to Provide Further Responses to
Interrogatories, Set Two (ECF No. 308)
Plaintiffs seek an order compelling Walmart to provide substantive response to
18
three interrogatories – Nos. 16, 17, and 18 – plaintiffs served as set two. See ECF No. 380
19
(Notice of Motion); see also ECF No. 317 (Joint Statement).
20
As outlined in the parties’ joint statement, plaintiffs served interrogatories, set two,
21
on Walmart on November 5, 2019. See ECF No. 317, pg. 8. While the parties do not provide the
22
court with copies of the actual discovery requests and responses at issue, according to the joint
23
statement the dispute concerns interrogatory nos. 16, 17, and 18. See id. at 45-46. In these
24
interrogatories, plaintiffs seek the following discovery:
25
INTERROGATORY NO. 16: IDENTIFY all category advisors to Walmart
for any categories related to Plaintiffs for Plaintiffs’ products, including but
not limited to the wet shave category and the beauty accessories category, at
any time during the period of January 1, 2002, to the present.
26
27
28
///
7
INTERROGATORY NO. 17: DESCRIBE Walmart’s document or data
retention policy, including but not limited to how documents or data are
organized and/or categorized for purposes of the policy, when the policy was
initiated, and the length of time that each type of document is retained and
how it is retained.
1
2
3
4
5
INTERROGATORY NO. 18: IDENTIFY all DOCUMENTS and tangible
things that (1) were requested from Walmart by Plaintiffs in this action
which (2) Walmart believes were deleted.
6
ECF No. 317, pgs. 45-46.
7
Walmart did not provide any substantive responses, arguing instead that plaintiff’s
8
interrogatories, set two, exceed the 25 interrogatories allowed under the Federal Rules of Civil
9
Procedure. See id. at 55-59. According to Walmart, plaintiffs’ have with their first set of 15
10
interrogatories exceeded the maximum of 25. The first set of interrogatories contained 15 items,
11
four of which were withdrawn by plaintiffs. Of the remaining 11 interrogatories, including
12
discreet subparts, Walmart contends interrogatory nos. 5, 11, and 14 are each one interrogatory
13
(total of 3), interrogatory no. 3 is two interrogatories (total of 2), interrogatory no. 4 is six
14
interrogatories (total of 6), interrogatory nos. 7, 8, 13, and 15 each are two interrogatories (total of
15
8), and interrogatory nos. 9 and 10 each are three interrogatories (total of 6). See id. at 56-59.
Under Federal Rule of Civil Procedure 33(a)(1), “a party” may serve up to 25
16
17
written interrogatories without stipulation or leave of court. Subparts to a single interrogatory are
18
only counted as one interrogatory “if they are logically or factually subsumed within and
19
necessarily related to the primary question.” Johnson v. Chau, 2019 U.S. Dist. LEXIS 15011, at
20
*8-9 (E.D. Cal. Jan. 30, 2019) (citation omitted). Discrete or separate questions should be
21
counted as separate interrogatories. See Kendall v. GES Exposition Servs., 174 F.R.D. 684, 685-
22
86 (D. Nev. 1997). Where separate parties are represented by the same counsel and are acting in
23
unison, they may be treated as one “party” for purposes of the limit on interrogatories. See Gucci
24
Am., Inc. v. Exclusive Imps. Int’l, 2002 U.S. Dist. LEXIS 14837, at *16-17 (S.D.N.Y. Aug. 12,
25
2002); see also Jerry Beeman & Pharmacy Servs., Inc. v. Anthem Prescription Mgmt., Inc., 2017
26
U.S. Dist. LEXIS 191720, at *10 (C.D. Cal. Nov. 17, 2017).
27
///
28
///
8
Plaintiffs contend they are in fact two “parties” – Sharidan Stiles and Stiles 4-U,
1
2
Inc. – and, as such, may together propound a total of 50 interrogatories, a number which the
3
parties agree has not been exceeded. Walmart contends plaintiffs are acting as one “party” under
4
the rules and, as one party, have with set two exceeded the allowable number of interrogatories
5
without leave of court or stipulation to do so.
6
Plaintiffs’ contention that they are two distinct parties for purposes of limitations
7
on discovery is unpersuasive and inconsistent with the position plaintiffs previously took in this
8
case. Specifically, in the context of plaintiffs’ motion for an order seeking elimination of an
9
“attorney eyes only” provision in Walmart’s proposed protective order concerning discovery,
10
plaintiffs took the position that plaintiff Stiles’ participation in the action was essential to the
11
overall prosecution of the case. See ECF No. 168, pgs. 12-16. Moreover, since the inception of
12
this case, plaintiffs have been working in unison, first pro se and now with the same counsel.
13
Thus, the 25-interrogatory limit applies.
As to the number of interrogatories that were asked in plaintiffs’ set one, the court
14
15
agrees with Walmart’s conclusion that plaintiffs asked at least 25 question in the 11
16
interrogatories and subparts thereto served as set one. “Parties cannot evade th[e] presumptive
17
limitation [of 25 interrogatories] through the device of joining as subpart questions that seek
18
information about discreet subjects.” Johnson v. Chau, 2019 U.S. Dist. LEXIS 15011, at *8 (E.D.
19
Cal. Jan. 30, 2019). Subparts are counted as one interrogatory if they are logically or factually
20
subsumed within and necessarily related to the primary question. See id. at *8-9. A review of
21
plaintiffs’ interrogatories, set one, reflects that, as Walmart contends, a number of interrogatories
22
contain numerous subparts, raising the total count of interrogatories propounded in set one to at
23
least 25, if not more.
24
Because plaintiffs met or exceeded the 25 allowable interrogatories with set one,
25
and because plaintiffs did not seek leave to propound additional interrogatories before serving set
26
two, Walmart’s objection is sustained and plaintiffs’ motion to compel Walmart to respond to
27
interrogatories, set two, will be denied.
28
///
9
1
C.
Plaintiffs’ Motion for Leave to Take Depositions in Excess of Ten (ECF
No. 288)
2
3
Plaintiffs seek an order authorizing them to take more than the maximum ten
4
deposition allowed under the Federal Rules of Civil Procedure without leave of court. See ECF
5
No. 288 (Notice of Motion); see also ECF No. 317 (Joint Statement). In the notice of motion,
6
plaintiff states they seek to take a total of 13 depositions. See ECF No. 288, pg. 4. In the joint
7
statement, plaintiffs state they seek to take a total of 18 depositions. See ECF No. 317, pg. 21.
8
To date, plaintiffs have not taken any depositions.
9
Parties are limited to no more than ten depositions without leave of court or
10
stipulation. See Fed. R. Civ. P. 30(a)(2)(A)(i); see also Nevis v. Rideout Mem’l Hosp., 2019 U.S.
11
Dist. LEXIS 188550, at *5-6 (E.D. Cal. Oct. 30, 2019). The party seeking more than ten
12
depositions bears the burden of making a particularized showing of the need for additional
13
depositions. See Rideout Mem’l Hosp., 2019 U.S. Dist. LEXIS 188550, at *5-6. Where the
14
action is complex, parties are not required to exhaust the ten allowable deposition prior to seeking
15
leave to take additional depositions. See Aerojet Rocketdyne, Inc. v. Global Aerospace, Inc.,
16
2018 WL 5993585 at *1 (E.D. Cal. Nov. 6, 2018); see also Del Campo v. American Corrective
17
Counseling Servs., Inc., 2007 WL 3306496 at *6 (N.D. Cal. Nov. 6, 2007) (“[I]t would be
18
prejudicial to require Plaintiffs to choose the ten depositions to take before they know whether
19
they will be granted more”). Finally, once a showing has been made, the court may relieve
20
parties of the limitations on depositions. See Fed. R. Civ. P. 26(b)(2)(A).
21
Here, the court finds plaintiffs have made the necessary showing as to the 18
22
deponents listed in the parties’ joint statement and will grant plaintiff’s motion for leave to take
23
18 depositions. While leave is hereby granted to take up to the 18 depositions designated by
24
plaintiff, the depositions are to be completed by the previously stipulated deadline of February 15,
25
2020. As Defendant Walmart has indicated that defendant has depositions yet to be completed by
26
that same deadline, the parties are directed to cooperate in the scheduling and coordination of all
27
remaining depositions, including but not limited to scheduling depositions to proceed on
28
concurrent schedules, in multiple venues to be covered by multiple counsel, other than just lead
10
1
counsel, and depositions scheduled outside ordinary business hours, including early mornings,
2
evenings and weekends.
3
D.
4
In its notice of motion and the parties’ first joint statement concerning its requests
5
6
Walmart’s Motion to Compel Plaintiffs to Provide Further Responses to
Requests for Production, Set One (ECF No. 280)
for production, set one, Walmart identifies the following issues:
7
One:
8
Two: Whether plaintiffs failed to collect responsive documents from all relevant
custodians.
9
Whether plaintiffs failed to serve a privilege log.
Three: Whether plaintiffs failed to produce certain responsive documents, or
confirm such documents do not exist, in eight categories:
- Tax filings.
- Comprehensive sales financial data.
- Contracts.
- Documents relating to actual or contemplated patent agreements.
- Communications with third parties.
- Documents concerning patents.
- Documents concerning “razor-related products.”
- Documents concerning manufacture of the Stiles Razor.
10
11
12
13
14
15
See ECF No. 280 (Notice of Motion); see also ECF No. 283 (First Joint
Statement).
16
17
Following the prior hearing at which the court encouraged the parties to engage in
18
good-faith meet-and-confer efforts to resolve as many of the pending discovery disputes as
19
possible, over the course of December 2019 and the first week of January 2020, plaintiffs
20
supplemented their responses and produced additional documents as well as a privilege log. See
21
ECF No. 313, pgs. 3-5 (Second Joint Statement). Walmart continues to argue plaintiffs’
22
“document production in response to Walmart’s RFPs remains deficient.” Id. at 14. Walmart’s
23
contentions, however, are now narrowed to two issues: (1) whether plaintiffs should be compelled
24
to produce further tax records in response to request for production no. 87; and (2) whether
25
plaintiffs should be compelled to produce other financial data in response to request for
26
production nos. 69, 75, 79, 81-84, and 93. See id. at 14-16.
27
///
28
///
11
1
Regarding tax records, Walmart contends:
2
25
Walmart’s RFP No. 87 seeks all documents regarding the value or
valuation of the Stiles Razor, including local, state, and federal tax filings.
Plaintiffs responded that they will search for relevant, non-privileged or
private documents and produce such documents on a rolling basis. See
Kiernan Decl., Ex. 1 at 94-95. Plaintiffs have produced two documents
regarding a profit loss statement from 2008 and a tax return history report
from 2013. Id., ¶ 34. Other than these two documents, plaintiffs have not
produced documents responsive to RFP No. 87. Id., ¶ 17. Walmart needs the
information to assess the value of the Stiles Razor and defend itself against
Stiles’ claim for damages. Plaintiffs claim they have “produced all
responsive documents within our clients’ possession, custody, or control as
of the date of the last production, except for privileged/work product
documents, which we have properly logged on a privilege log,” Kiernan
Decl., Ex. 5, but it is simply not credible that a small business owner does
not have in her possession, custody, or control, any of her tax filings related
to a product she purportedly patented and sold for years at Walmart and
elsewhere. See Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal.
1995) (“Thus, actual possession of the requested documents is not required.
A party may be ordered to produce a document in the possession of a nonparty entity if that party has a legal right to obtain the document or has
control over the entity who is in possession of the document.”) (citation
omitted). When asked during the parties’ meet and confer call what plaintiffs
did to search for documents responsive to Walmart’s RFPs—specifically,
plaintiffs’ tax records—plaintiffs’ counsel refused to respond, claiming the
information was “work product.” Simonsen Decl., ¶ 3.
To be clear, plaintiffs’ qualified privilege objection to producing their
tax returns is meritless. Plaintiffs concede that “[o]rdering production of tax
returns requires both that ‘they are relevant’ and that ‘there is a compelling
need for them because the information sought is not otherwise available.’”
ECF No. 283 at 16 (quoting Aliotti v. Vessel SENORA, 217 F.R.D. 496, 497–
98 (N.D. Cal. 2003)). As discussed below, there are significant gaps in the
financial and revenue data produced by plaintiffs. Accordingly, the
information about plaintiffs’ sales of their product contained in their tax
returns “is not otherwise available,” and accordingly plaintiffs’ tax returns
are discoverable.
The Court should order plaintiffs to produce the responsive tax
records or, if they claim they cannot find the records or the records do not
exist, to “produce a declaration signed under penalty of perjury . . .
explaining the specific efforts and methods used to locate these records,” to
the extent they “conclude[] that [they] [are] not in possession, custody, or
control of any such records.” Berger v. Home Depot United States, Inc., 2010
U.S. Dist. LEXIS 152830, at *15 (C.D. Cal. Oct. 7, 2010); see Coppola v.
Smith, 2016 U.S. Dist. LEXIS 22066, at *9, *11 (E.D. Cal. Feb. 23, 2016)
(“In responding to discovery requests, a reasonable inquiry must be made . . .
. To comply with the discovery rules, the [responding party] must confirm
that a thorough search was conducted with due diligence . . . .”) (emphasis
added).
26
ECF No. 313, pgs. 14-15.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
27
///
28
///
12
1
Regarding financial data, Walmart contends:
2
Walmart’s RFP Nos. 69, 75, 79, 81-84, and 93 seek comprehensive
financial data for sales of the Stiles Razor, including sales through third party
retailers. See Kiernan Decl., Ex. 1 at 81-82, 86, 88-89, 90-92, & 98-99. In
response, plaintiffs have produced limited financial data from Walmart and
Crossmark, Inc., as well as a screen shot of an account payable summary for
Stiles from Target Corp. Following the parties’ November meet and confer,
plaintiffs made three document productions. Those document productions
contained purchase orders and invoices for Stiles’ products at Target,
Walmart, Amazon, Big Lots, and Body 4 Real. Plaintiffs also produced order
forms and invoices for the manufacturing of plaintiffs’ products and
shipment of plaintiffs’ products to retailers. See Kiernan Decl., ¶¶ 18, 33.
Plaintiffs have not produced any internal financial reporting or data, let alone
comprehensive financial data for sales of the Stiles Razor through retailers
other than Walmart or any other financial data by which Walmart can
ascertain the sales amounts. Id. Walmart needs this information to prepare a
defense to plaintiffs’ claims for damages. Again, plaintiffs’ claim that they
have produced all responsive, non-privileged documents is simply not
credible, and plaintiffs have refused to provide any information about what
they did to search for responsive documents. Simonsen Decl., ¶ 3. The Court
should order plaintiffs to produce comprehensive and complete financial data
for sales of the Stiles Razor or, if they claim they cannot find any other
records or no other records exist, to “produce a declaration signed under
penalty of perjury . . . explaining the specific efforts and methods used to
locate these records,” to the extent they “conclude[] that [they] [are] not in
possession, custody, or control of any such records” beyond what they have
produced. Berger, 2010 U.S. Dist. LEXIS 152830, at *15.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
Id. at 15-16.
According to plaintiffs, during the course of the meet-and-confer process, they
18
repeatedly informed Walmart that all responsive documents in their custody, possession, or
19
control had been produced. See ECF No. 313, pgs. 16-18. The gravamen of Walmart’s argument
20
is its apparent disbelief in plaintiffs’ representations. Walmart seeks an order consistent with
21
Berger requiring plaintiffs to submit a declaration under penalty of perjury regarding efforts
22
plaintiffs took to locate and produce responsive tax records and financial data.
23
At the hearing, Walmart’s counsel represented that plaintiff had produced
24
additional tax and financial records just the night prior. Plaintiffs’ method of document
25
production in response to request for production no. 87 suggests a lack of diligence and good
26
faith, though the court does not so find at this time. Plaintiffs will be directed to serve a
27
supplemental response to request for production no. 87 and to produce all responsive documents
28
which have not already been produced. If there are no more responsive documents to produce,
13
1
plaintiffs shall so state.
2
The court declines to require plaintiffs’ counsel to submit a declaration consistent
3
with Berger. Ordinarily, counsel’s representations that a diligent search has been made and that
4
responsive documents have been produced is sufficient. See e.g. Goethe v. Cal. DMV, 2009 U.S.
5
Dist. LEXIS 105292 at *2-4 (E.D. Cal. Oct. 27, 2009). Walmart has not presented any evidence
6
to suggest that plaintiffs’ counsel is not being truthful or that there are concerns of spoliation of
7
evidence, as was the situation in Berger, cited by Walmart.
8
9
Both parties are reminded that any documents that would have been responsive to
proper discovery, but which was not produced, will not be admitted at the time of trial.
10
E.
11
12
Walmart’s Motion to Compel Plaintiffs to Provide Further Responses to
Interrogatories, Set One (ECF No. 281)
In November and December 2019, the parties engaged in meet-and-confer efforts.
13
See ECF No. 314, pgs. 5-9 (Second Joint Statement). As a result of these efforts, plaintiffs served
14
supplemental responses and objections to Walmart’s interrogatories, set one, on December 15,
15
2019. See id. at 6. Following plaintiffs’ supplementation, Walmart continues to assert plaintiffs’
16
responses to certain interrogatories remain deficient and that the court should order further
17
responses. See id. at 18-50. Walmart’s motion is now limited to the following issues:
18
(1) whether plaintiffs should be compelled to provide further supplemental responses to
19
interrogatory nos. 15-18 regarding an alleged agreement between Walmart and defendant
20
American International Industries, Inc. (AI); (2) whether plaintiffs should be compelled to
21
provide a further supplemental response to interrogatory no. 20 regarding the product market
22
alleged in the complaint; (3) whether plaintiffs should be compelled to provide further
23
supplemental responses to interrogatory nos. 5-7, 10, and 21 regarding sales of the Stiles Razor;
24
(4) whether plaintiffs’ assertion of a global privilege objection violates Federal Rule of Civil
25
Procedure 33(b)(4) requiring objections to be stated with specificity; and (5) whether plaintiffs
26
should be precluded from offering or relying on information or facts responsive to interrogatory
27
nos. 1-14 and 19-21 that has not been provided in any of their responses to these interrogatories.
28
See id.
14
1
1.
Sufficiency of Substantive Responses
2
In its first three contentions, Walmart challenges the sufficiency of plaintiffs’
3
supplemental substantive responses to interrogatory nos. 5-7, 10, 15-18, 20, and 21. Plaintiffs
4
served their supplemental responses on December 15, 2019. See ECF No. 314-8.
5
i.
6
Interrogatory Nos. 5-7, 10, and 21
In supplemental response to interrogatory nos. 5-7 and 21, plaintiffs state:
7
“. . . Stiles identifies the documents in Exhibits 1 and 2, a subset of which will contain the
8
information responsive to this interrogatory.” Id. at 14-17, 133. Exhibits 1 and 2 consist,
9
respectively, of lists of 773 and 1,400 discovery documents previously produced. See id. at 135-
10
184. In supplemental response to interrogatory no. 10, plaintiffs state: “. . .Stiles identifies the
11
documents in Exhibit 3, a large subset of which will contain the information responsive to this
12
interrogatory.” See ECF No. 314-8, pg. 21. Exhibit 3 consists of a list of 837 documents. See id.
13
at 185-204. Walmart asserts this method of responding to its interrogatories is deficient.
14
Federal Rule of Civil Procedure 33(d)(1) permits reference to business records in
15
response to interrogatories provided “the answer to an interrogatory may be determined by
16
examining, auditing, compiling, abstracting, or summarizing a party’s business records. . ., and if
17
the burden of deriving or ascertaining the answer will be substantially the same for either
18
party. . . .” Fed. R. Civ. P. 33(d)(1). A responding party citing such records must specify the
19
record that must be reviewed in sufficient detail to enable to interrogating party to locate and
20
identify them as readily as the responding party could. . . .” Id. A repeated reference to a block
21
of documents does not constitute compliance. See E. & J. Gallo Winery v. Rallo, 2006 U.S. Dist.
22
LEXIS 84048, at *11-12 (E.D. Cal. Nov. 8, 2006); see also Carolina Cas. Ins. Co. v. Oahu Air
23
Conditioning Serv., 2014 U.S. Dist. LEXIS 131109, at *25-27 (E.D. Cal. Sep. 16, 2014) (“A
24
citation to thousands of pages of documents in an insufficient response to interrogatories”). If a
25
responding party provides a voluminous reference to business records, the party must also include
26
an index guiding the interrogating party to the specific responsive documents. See Carolina Cas.
27
Ins. Co., 2014 U.S. Dist. LEXIS 131109, at *27.
28
///
15
1
Here, as Walmart notes, plaintiffs have in essence directed Walmart to lists of
2
numerous documents, a subset of which contain responsive information, and said “good luck.”
3
Plaintiffs have failed to provide any meaningful way for Walmart to discern from the volumes of
4
documents cited which specific documents contain responsive information. As such, plaintiffs’
5
method of responding under Rule 33(d)(1) is insufficient and plaintiffs will be ordered to provide
6
further supplemental responses. If responsive information are within the universe of records
7
identified by plaintiffs in exhibits 1, 2, and 3, plaintiffs shall identify the specific documents
8
containing such responsive information.
9
ii.
Interrogatory Nos. 15-18
10
Walmart seeks the following discovery:
11
INTERROGATORY NO. 15: Identify every Communication and meeting,
including any Document related to such Communications and meetings,
which you contend Relates to any alleged unlawful agreement between
Walmart and American International, including but not limited to the
individuals that you contend were involved in each such Communication or
meeting, whether the Communication or meeting was in person or over the
phone, and the place where the Communication or meeting occurred.
12
13
14
15
16
17
18
19
INTERROGATORY NO. 16: Identify all facts and Documents You contend
support Your allegations that Walmart and American International entered
into the unlawful agreement allege din the Fourth Amended Complaint.
INTERROGATORY NO. 17: Identify all facts and Documents that You
contend support Your allegations in paragraph 129 of the Fourth Amended
Complaint that “before May 30, 2012, American Industries began discussing
the creation of the Salon Perfect Micro Razor with Walmart.”
21
INTERROGATORY NO. 18: Identify all facts and Documents that You
contend support Your contention that Walmart’s 2012 line review of
American International’s product line occurred earlier than July of 2012,
including when You contend such line review occurred.
22
ECF No. 314-8, pgs. 28, 61, 94, 107.
20
23
Plaintiffs served lengthy and virtually identical initial and supplemental responses to these
24
interrogatories. See id. at 28-127.
25
Walmart contends plaintiffs’ responses are deficient because they incorporate
26
arguments relating to new allegations and claims contained in a proposed fifth amended
27
complaint the District Judge did not grant leave to file. Walmart seeks an order compelling
28
plaintiffs to provide substantive responses to interrogatory nos. 15-18 which are based solely on
16
1
the allegations contained in the operative fourth amended complaint. A review of plaintiffs’
2
responses to interrogatory nos. 15-18 reflects that they are indeed ambiguous and confusing.
3
Plaintiffs’ responses consist largely of arguments relating to various legal theories, some of which
4
Walmart contends are not at issue in this action. Plaintiffs will be directed to serve supplemental
5
responses to interrogatory nos. 15-18 which are more directly responsive and applicable to the
6
facts plaintiffs allege support their various legal theories.
7
iii
Interrogatory No. 20
8
Walmart seeks the following discovery:
9
INTERROGATORY NO. 20: Identify every razor (by make and model)
from January 1, 2007, to present that You contend falls within the
Disposable Personal Styling Razors product market alleged in the Fourth
Amended Complaint.
10
11
12
13
14
15
ECF No. 314-8, pg. 129.
Walmart persuasively argues that plaintiffs’ supplemental response to Interrogatory 20 is
deficient in the inclusion of qualifying terms such as “some or all,” “without limitation,” and
“may”, which limiting language is elusive and fail to respond with sufficient specificity to a
request to identify “every razor” within the designated category. See Fed. R. Civ. P. 33(b)(3)
16
(requiring full answers) and 33(d)(1) (regarding reference to business records). Plaintiffs will be
17
ordered to provide a further supplemental response to Walmart’s interrogatory no. 20.
18
2.
19
Privilege Objection
Walmart contends plaintiffs’ assertion of a boilerplate global objection based on
20
privilege fails to comply with Federal Rule of Civil Procedure 33(b)(4). Under Rule 33(b)(4),
21
“[t]he grounds for objecting to an interrogatory must be stated with specificity.” “Whe[n] a
22
responding party states a general objection to an entire discovery document on the basis of
23
privilege, . . . the resulting ‘blanket objection’ is decidedly improper.” Eureka Fin. Corp. v.
24
Hartford Acci. & Indem. Co., 136 F.R.D. 179, 182 (E.D. Cal. 1991). According to Walmart,
25
26
none of plaintiffs’ responses to Walmart’s interrogatories, set one, state whether plaintiffs have
withheld information on the grounds of privilege.” ECF No. 314, pg. 49. Walmart seeks an order
27
compelling plaintiffs to so state. See id.
28
17
Plaintiffs state in the second joint statement filed regarding Walmart’s
1
2
interrogatories, set one, that they are “not withholding an information on behalf of any privilege
3
objection.” Id. at 55. Because plaintiffs have not formally stated this in writing, and because
4
Walmart is entitled to a formal response to its interrogatories, set one, indicating that no
5
information is being withheld on the basis of privilege, Walmart’s motion will be granted and
6
plaintiffs will be required to serve a supplemental response indicating that no information is being
7
withheld in response to Walmart’s interrogatories, set one, on the basis of privilege. To the extent
8
any privilege is being asserted, plaintiff shall identify the specific privilege, and shall serve a
9
privilege log as required by statute.
10
3.
Future Use of Undisclosed but Responsive Information
11
Relying solely on Tumbling v. Merced Irrigation Dist., 2010 U.S. Dist. LEXIS
12
101404, at *60-61 (E.D. Cal. Sep. 27, 2010), Walmart argues the court should enter an order
13
precluding plaintiffs from offering or using at any time in the future of this litigation any
14
information responsive to its discovery requests but which has not been disclosed in any
15
responses to interrogatory nos. 1-14 and 19-21. As plaintiffs note, this request for relief is not
16
ripe until and unless plaintiffs attempt to offer evidence which is responsive but was not
17
disclosed. In Tumbling, the court concluded in ruling on a motion for summary judgment that the
18
plaintiff’s retaliation claim was limited to the facts in his answer to interrogatory no. 21. See id.
19
Thus, the issue before the court was whether evidence that was sought to be used could actually
20
be used. In this case, plaintiffs have not yet sought to offer or otherwise use information which
21
Walmart claims is responsive to its interrogatories but was previously undisclosed. Until this
22
happens, Walmart’s request is premature. It could be that plaintiff will never seek to use such
23
information. If plaintiffs do, the issue should be decided in the context the information is offered,
24
such as in considering a motion for summary judgment or at trial. Walmart’s premature motion
25
for a preclusion order will be denied.
26
///
27
///
28
///
18
1
IV. CONCLUSION
2
Accordingly, IT IS HEREBY ORDERED that:
3
1.
Plaintiffs’ motion to compel (ECF No. 279) is denied;
4
2.
Plaintiffs’ motion to compel (ECF No. 308) is denied;
5
3.
Plaintiff’s motion for leave to take depositions in excess of ten (ECF No.
6
288) is granted;
7
4.
Walmart’s motion to compel (ECF No. 280) is granted in part;
8
5.
Plaintiffs shall serve supplemental responses to Walmart’s request for
9
production no. 87 on or before January 21, 2020;
10
6.
Walmart’s motion to compel (ECF No. 281) is granted in part; and
11
7.
Plaintiffs shall serve supplemental responses to Walmart’s interrogatory
12
nos. 5-7, 10, 15-18, 20, and 21 on or before January 27, 2020, such supplemental responses to
13
indicate, as represented by counsel at the hearing, that no information is being withheld on the
14
basis of privilege.
15
16
17
18
Dated: January 17, 2020
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
19
20
21
22
23
24
25
26
27
28
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?