Cazet et al v. Epps et al

Filing 100

ORDER RE APRIL 29, 2011 DISCOVERY LETTER. Signed by Judge Beeler on 5/6/2011. (lblc1, COURT STAFF) (Filed on 5/6/2011)

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UNITED STATES DISTRICT COURT

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Northern District of California

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Oakland Division
ROBERT L. CAZET, et al.,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 10-02460 JSW (LB)

Plaintiffs,

ORDER RE APRIL 29, 2011
DISCOVERY LETTER

v.
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TOPPA EPPS, et al.,

[ECF Nos. 91 and 94]

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Defendants.
_____________________________________/

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I. INTRODUCTION

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Plaintiffs Robert L. Cazet, Alumni Athletics USA, LLC, and Alumni Athletics USA, Inc. sued

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Defendants Toppa Epps, Cameron Ripley, and Edward Hayman for using the name “Alumni

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Athletics” (or variations of it) after their business relationship with Mr. Cazet ended. See First

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Amended Complaint, ECF No. 25.1 The claims include false or misleading advertising under the

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Lanham Act (claim one), false or misleading advertising under California state law (claim two),

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misappropriation of trade secrets under state law (claim three), a section 17200 claim based on

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unlawful, unfair or fraudulent business practices (with claims one through three serving as the

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predicates under the “unlawful” prong of section 17200) (claim four), and common law unfair

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competition (claim five). See id.

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The discovery dispute at issue (referred by the district court) is Defendants’ motion to quash

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Citations are to the clerk’s electronic case file (ECF) with pin cites to the electronic page
numbers at the top (as opposed to the bottom) of the page.
C 10-02460 JSW (LB)
ORDER

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Plaintiffs’ subpoenas to Defendants’ insurance carriers, who are providing defense costs (under a

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reservation of rights). See 4/20/11 Joint Letter, ECF Nos. 91 and 94 (parties omitted subpoenas

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from first letter and submitted them on April 29, 2011). Defendants already produced insurance

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documents (including the relevant policy applications) but Plaintiffs generally now want the

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following: (A) all insurance applications; (B) all documents (electronic and paper) regarding the

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insurance policy at issue (including predecessor and successor policies); (C) all information

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(electronic and paper) about any statements by Defendants about their years in business, their

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business experience, their prior claims history, business names used, and the number (and years) of

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prior events; (D) all communications (electronic and paper) with Defendants; and (E) all
communications (electronic and paper) with Stainbrook and Stainbrook LLP. See ECF Nos. 94-1 at

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4 and 94-2 at 4.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Defendants object that the information is irrelevant because private information given to

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insurance companies cannot be relevant to claims involving false advertising and unfair competition,

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which are about public acts by Defendants designed to mislead the consuming public. See ECF No.

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94 at 1-2.2 Plaintiffs counter that Defendants could not conduct their alumni sporting events without

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insurance, and they may have gotten insurance by lying about their business experience (for

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example, by saying they had been in operation for 20 years when they had only four or five games in

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2009). Id. at 3-4. Plaintiffs argue that they should be able to pursue discovery about new wrongs,

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and in any event, the information is relevant 404(b) evidence about Defendants’ intent to deceive,

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particularly given that similar statements are on Defendants’ web sites. Id. at 4.3

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The non-party insurance carriers also object to the subpoena on grounds that boil down to

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relevance, privilege, overbreadth, and burden. Also, Plaintiffs can get the insurance applications and

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policies from Defendants. See ECF Nos. 94-3 at 2-4, 94-5 at 2-4.

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Plaintiffs do not challenge Defendants’ assertion that because they have a clear interest in
the subject matter, Defendants have standing to challenge the third-party subpoenas. See ECF No.
94 at 1 (case citation omitted).
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Defendants do not challenge Plaintiffs’ assertion that federal courts do not recognize an
insured-insurer privilege. See ECF No. 94 at 2 (case citation and quotation omitted).
C 10-02460 JSW (LB)
ORDER

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The bottom line here is that Defendants should have all documents about what policies are at

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issue here, and what information about their business experience they submitted to the insurance

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carriers. To the extent that allegedly fraudulent information about business experience was

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submitted, it is relevant to Defendants’ intent to deceive, and Defendants must produce it, either

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from documents in their possession or by obtaining it from their carriers and thereafter producing it.

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Defendants do not appear to contest that they are obliged to produce the relevant insurance

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information, and indeed, the parties’ joint letter shows that Defendants have produced “relevant

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insurance documents, including the relevant policy application.” ECF No. 94 at 1.

confer by the parties. If there are further disputes about the extent of compliance, the parties may

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submit a follow-up letter, and the court will schedule a telephone conference to address the matter.

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For the Northern District of California

To ensure that Defendants have produced this information, the court directs a further meet and

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UNITED STATES DISTRICT COURT

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Moreover, the parties apparently are trying to schedule a meet-and-confer with the insurance carrier,

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and this process will allow that conference.

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Accordingly, the court grants Defendants’ request to quash the subpoenas without prejudice to

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Plaintiffs’ raising the issue again should Plaintiffs be unable to obtain the relevant policies,

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applications, and statements about business experience from the Defendants directly.

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This disposes of ECF Nos. 91 and 94.

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IT IS SO ORDERED.

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Dated: May 6, 2011

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_______________________________
LAUREL BEELER
United States Magistrate Judge

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C 10-02460 JSW (LB)
ORDER

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