Lakes v. Bath & Body Works, LLC

Filing 198

ORDER signed by Magistrate Judge Allison Claire on 12/29/2020 DENYING 178 Plaintiff's Motion to re-open discovery. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CRYSTAL LAKES,

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No. 2:16-cv-02989 MCE AC

Plaintiff,
v.

ORDER

BATH & BODY WORKS, LLC,
Defendant.

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This case is before the court on plaintiff’s motion to re-open discovery for limited

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purposes. ECF No. 178. This discovery-related matter was referred to the undersigned pursuant

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to E.D. Cal. R. 302(c)(1) and by the District Judge at ECF No. 183. The motion was taken under

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submission without oral argument, pursuant to Local Rule 230(g). ECF No. 184. Upon review of

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the record and the parties’ briefs, the motion is DENIED, for the following reasons.

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I.

Relevant Background

In this removed product liability action, plaintiff sues defendant Bath & Body Works,

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LLC (“BBW”) for damages arising from an incident in which a candle sold by defendant

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“exploded” when she attempted to put it out, splashing and burning her with melted wax,

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inflicting what she characterizes as significant injuries and permanent scarring. ECF No. 2 at 9.

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Plaintiff asserts claims of general negligence and products liability and seeks recovery of general

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and exemplary damages. Id. at 9-13. The specific product at issue is described as “a three-wick
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Bath & Body Works Aromatherapy – Eucalyptus Spearmint scented candle purchased through

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Amazon.com.” Id. at 18. This case has been before the undersigned previously for discovery

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disputes, and some of the background that follows is reprised from the court’s previous orders.

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In ruling on a motion to compel brought by plaintiff, the undersigned ordered on January

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23, 2018 that, within 30 days: “Defendant shall produce additional documents in response to

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Requests for Production numbered 6, 8, 12, 13, 14, 15, 16, 18, 20 as to all three-wick candles

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marketed by Defendant, and whose manufacture occurred in 2005 or later.” ECF No. 40 at 6. As

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relevant to the instant matter, Request for Production (“RFP”) No. 8 sought all documents

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“evidencing any failure analysis undertaken regarding” BBW candles; RFP No. 12 requested all

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documents evidencing “any sudden, unexpected flaring” of BBW candles; and RFP No. 13

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requested all documents evidencing “the cause of any sudden, unexpected flaring” of BBW

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candles. ECF No. 131-1 (Ex. 1) at 7-8.

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On February 23, 2018, BBW produced what it characterizes as “nearly 100,000 pages of

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documents, including the history of claims, claims files, and design documents including a

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complete spreadsheet of consumer complaints relating to three-wick candles.” ECF No. 144 at 4.

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On June 12 and July 9, 2018, plaintiff’s counsel deposed two BBW engineers who testified that in

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pre-production development testing in the previous 6-9 months, one three-wick “Leaves” scented

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candle with a new fragrance flashed over. Due to this flashover, engineers at BBW started a “root

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cause analysis” which was still ongoing, and BBW did not launch, commercialize, mass produce,

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or sell any Leaves candles with that fragrance. ECF Nos. 131-2 at 10-11; 131-3 at 6-7, 9, 12.

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Plaintiff then issued an additional set of production requests, seeking in RFP No. 66 documents

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related to the “root cause” investigation the engineers had described. ECF No. 131-5 (Ex. 5) at 6-

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7. On July 18, 2018, defendant responded, objecting to RFP No. 66, in part because the “‘root

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cause analysis’ . . . is ongoing and there are no written findings or analyses yet. Further, the

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candle involved in the root cause analysis is a separate, unrelated product to the candle at issue in

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this lawsuit.” Id. On July 27, 2018, plaintiff submitted an initial motion for adverse inference

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(ECF No. 95), and between July 27-29, 2018, BBW supplemented its response to RFP No. 66 by

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producing 83 pages of documents related to the root cause investigation (ECF No. 131-6 (Ex. 6)).
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ECF No. 144-2. Non-expert discovery closed on July 30, 2018. ECF No. 72.
On June 12, 2018, plaintiff’s counsel also deposed a BBW quality engineer, who testified

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that BBW was aware of flashovers involving a three-layer, three-wick “Pina Colada” scented

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candle; that there was some internal discussion, possibly in 2016, about performing a chemical

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analysis on that candle; and, although he was not completely certain, he believed a chemical

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analysis was ultimately performed. ECF No. 131-7 (Ex. 7) 8-9, 13-15. Plaintiff contended this

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was the first time she learned of any investigation into flashovers by the Pina Colada candle.

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ECF No. 131 at 6. Plaintiff confronted BBW about this testimony, and in October 2018 (two

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months after the close of discovery), BBW produced 180 pages of documents relating to the Pina

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Colada candle, which plaintiff alleges did not include any emails, discussion, or final report with

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conclusions. ECF Nos. 131 at 7; 144 at 7. BBW stated that it produced these documents in good

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faith, despite believing them to be unrelated to any of plaintiff’s prior requests. ECF No. 144 at

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7. An affidavit by Stephen Smith, the Vice President for Technical Services of BBW’s parent

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company, stated that “BBW, through counsel, has produced all responsive, non-privileged

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documents relating to a root cause analysis of flashovers, candle fires or high flames, including

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for the ‘Pina Colada’ candle. There are no additional documents.” ECF No. 144-4 at 3.

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In September 2018, plaintiff’s counsel deposed a former BBW sales associate who

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worked part-time in a BBW retail store in Pocatello, Idaho. The associate testified that in late

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2015 or early 2016, her store manager advised her not to buy any candles from the multi-layer,

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three-wick line because they were exploding on people; some amount of time later, the store

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manager told her they had been instructed to remove one fragrance of three-wick candle—a

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yellow, coconut scented candle—because they were having issues with them catching fire or

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exploding. ECF No. 131-9 at 4-6. Plaintiff’s counsel then followed up with BBW’s counsel to

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request records related to the “recall” of this candle, which she believes to be the Pina Colada

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candle. ECF No. 131-10 (Ex. 10) at 4. Plaintiff never served a formal discovery demand for

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these records, and BBW has not provided any. ECF Nos. 131 at 8, 144 at 7. The Smith Affidavit

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referenced above states that “BBW does not have any documents relating to Plaintiff’s contention

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of a ‘silent recall’ of any three-wick candles.” ECF No. 144-4 at 3.
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Earlier in the litigation, plaintiff moved for sanctions based on defendant’s resistance to

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providing data regarding all of its candles. Ultimately, a nearly 600-page spreadsheet of 1,280

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candle flashover incidents was given to plaintiff’s counsel. ECF No. 85 at 12. Still, on July 11,

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2018, the court granted in part the motion for sanctions because defendant’s positions in the

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discovery dispute were not “substantially justified.” ECF Nos. 85, 111.

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On February 27, 2019, plaintiff moved for evidentiary sanctions in the form of an adverse

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inference jury instruction, pursuant to Rule 37(b)(2)(A). ECF No. 131. Plaintiff argued that

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BBW had violated an earlier order, in part, by failing to produce all documents related to a Pina

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Colada candle root cause investigation, which likewise constituted a “failure analysis,” and by

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failing to produce documents related to the 2015 or 2016 “silent recall” of the Pina Colada three-

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wick candle, which would have contained materials evidencing “sudden, unexpected flaring.” Id.

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In relevant part, defendant argued that the motion amounted to an untimely raised discovery

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dispute, and that BBW produced all non-privileged, responsive documents that it possesses

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concerning the categories at issue. ECF No. 144. The motion was denied on May 15, 2019. ECF

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No. 147.

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On April 28, 2020, plaintiff asked the court to issue an order to show cause to BBW as to

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why it should not be held in contempt for making repeated misrepresentations to the court. ECF

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No. 163 at 2. Plaintiff stated she “believes” that recent deposition testimony by the manager of

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the Pocatello, Idaho store (referenced above), which was taken in another case, will show that

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BBW sent an e-mail directive to its store managers throughout the country to remove the Pina

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Colada candle from the shelves, effecting a “silent recall.” ECF No. 163 at 4-5. Plaintiff

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requested a copy of the manager’s deposition testimony, and BBW refused to provide it. Id. at 5.

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Plaintiff sought an order from this court requiring BBW to produce the manager’s deposition

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transcript immediately. Id. Plaintiff argued that she “believes” that the transcript will show that

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defendant falsely represented in this case that no such “silent recall” emails exist. Id.

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In the order denying plaintiff’s motion, issued July 28, 2020 (ECF No. 174), the court

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noted that it had previously refused to order sanctions with respect to the non-production of

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documents related to the alleged “silent recall,” because plaintiff had failed to establish that any
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such documents, or any such recall, existed. The deposition testimony of a part-time salesclerk in

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Idaho, who rather vaguely remembered her manager telling her that she had been told to remove

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from the store a particular fragrance of three-wick candle, was insufficient. While acknowledging

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plaintiff’s concerns, and stating that “[the court] does not suggest that her suspicions are

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unreasonable,” the undersigned held that “an Order to Show Cause re Contempt does not issue on

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the basis of reasonable suspicion” and that plaintiff failed to establish a prima facie case of

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contempt. ECF No. 174 at 6-7. In the July 28, 2020 order, the court found plaintiff presented “no

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new information regarding the alleged ‘silent recall,’ and no actual evidence with any probative

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value regarding the existence of such a recall. Instead, the motion seeks the information that

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plaintiff hopes will reveal the existence of a prima facie case.” Id.
Plaintiff now moves to re-open discovery based upon the same facts and argument that

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she presented in her motion for sanctions. ECF No. 178 at 2, n.2 (“The silent recall and BBW’s

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refusal to produce this deposition transcript are the subject of Plaintiff’s pending Request for

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Reconsideration By The District Court Of The Magistrate Judge’s July 29, 2020 Order.”).

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Discovery in this matter has been closed for over two years. ECF No. 66 (closing discovery July

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30, 2018). The dispositive motions deadline passed nearly a year ago. Id. Defendant opposes the

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motion to re-open discovery. ECF No. 193.

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II.

Legal Standard

When ruling on a motion to amend a Rule 16 scheduling order to reopen discovery, the

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court’s exercise of discretion is guided by consideration of six factors: (1) whether trial is

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imminent; (2) whether the request is opposed; (3) whether the non-moving party would be

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prejudiced; (4) whether the moving party was diligent in obtaining discovery within the

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guidelines established by the court; (5) the foreseeability of the need for additional discovery in

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light of the time allowed for discovery by the district court, and (6) the likelihood that the

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discovery will lead to relevant evidence. City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060,

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1066 (9th Cir. 2017) (citations omitted). The district court has “wide latitude” in controlling

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discovery. United States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir.

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1995), vacated on other grounds, 520 U.S. 939 (1997).
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III.

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Analysis

Here, the only factor favoring plaintiff’s motion is the first: the final pre-trail conference

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in this case is not set until the end of February 2022, more than one year from the present date.

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ECF No. 177. This, however, is a function of the overburdened trial schedule of the Eastern

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District of California, not plaintiff’s diligence in making this motion. Disfavoring the motion is

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the fact of defendant’s strong opposition to re-opening discovery more than two years after it

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closed. ECF No. 193. Further, the prejudice to defendant is undeniable: opening non-expert

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discovery after more than two years have elapsed since its closure will undoubtedly increase costs

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and labor, potentially requiring additional expert discovery and inviting further discovery related

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litigation. See ECF No. 193 at 18-19. The moving party was not diligent in making this motion,

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having opted first to seek sanctions on the same basis without a request to reopen, and waiting

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until that motion was denied before bringing the motion at bar. See ECF Nos. 163, 174.

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Foreseeability of the need for additional discovery considering the time allowed for discovery

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weighs against re-opening: the discovery deadline was twice extended before it lapsed, and there

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is no indication that the court initially gave too limited time to conduct adequate discovery. See

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ECF Nos. 25, 66

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Finally, there is no reason to believe that re-opening discovery will lead to relevant

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evidence. Defendant has submitted sworn testimony stating there are no documents related to a

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“silent recall” of the three wick candles. ECF No. 163-2. Plaintiff misconstrues the

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undersigned’s previous statement that she did “not suggest that [plaintiff’s] suspicions are

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unreasonable” as a statement that the court affirmatively found a “reasonable suspicion of

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discovery misconduct”—and argues that this shows good cause to re-open discovery. ECF No.

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196 at 2, referencing ECF No. 174 at 6. A decision not to comment on the merits of plaintiff’s

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suspicion is not, and was not intended to be, a validation of that suspicion. To be clear, plaintiff

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has not presented the court with any evidence that would suggest re-opening the long-closed

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discovery phase of this case would be fruitful.

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IV.

Conclusion

For the foregoing reasons, the court hereby ORDERS that plaintiff’s motion to re-open

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discovery in this case (ECF No. 178) is DENIED.

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DATED: December 29, 2020

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