Gardensensor, Inc v. Stanley Black & Decker, Inc

Filing 117

ORDER ON DISCOVERY DISPUTES Re: Dkt. Nos. 94, 100 by Judge Nathanael M. Cousins (nclc2, COURT STAFF) (Filed on 9/22/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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11 GARDENSENSOR, INC., a Delaware
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Corporation, formerly known as
PLANTSENSE, INC., a Delaware
Corporation,
Plaintiff,

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Case No. 12-cv-03922 NC
ORDER ON DISCOVERY
DISPUTES
Re: Dkt. Nos. 94, 100

v.
BLACK & DECKER (U.S.), INC., a

16 Maryland Corporation,
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Defendant.

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Pending before the Court are two discovery disputes: Dkt. No. 94, in which

20 Gardensensor moves to compel further responses to interrogatories and document requests
21 from Black & Decker, and Dkt. No. 100, in which Black & Decker moves for a protective
22 order preventing the deposition of Jeffrey Ansell.
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In general, “[p]arties may obtain discovery regarding any nonprivileged matter that is

24 relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Furthermore, “[f]or
25 good cause, the court may order discovery of any matter relevant to the subject matter
26 involved in the action.” Id. Information is relevant for discovery purposes if it “appears
27 reasonably calculated to lead to the discovery of admissible evidence.” Id. However, even
28 when the information sought by the parties in a civil lawsuit is relevant, the Court must
Case No. 12-cv-03922 NC
ORDER ON DISCOVERY DISPUTES

1 limit the scope of discovery if it determines that (1) “the discovery sought is unreasonably
2 cumulative or duplicative, or can be obtained from some other source that is more
3 convenient, less burdensome, or less expensive”; (2) “the party seeking discovery has had
4 ample opportunity to obtain the information by discovery in the action”; or (3) “the burden
5 or expense of the proposed discovery outweighs its likely benefit, considering the needs of
6 the case, the amount in controversy, the parties’ resources, the importance of the issues at
7 stake in the action, and the importance of the discovery in resolving the issues.” Fed. R.
8 Civ. P. 26(b)(2)(C). In other words, the Court seeks to “strike[] the proper balance between
9 permitting relevant discovery and limiting the scope and burdens of the discovery to what is
10 proportional to the case.” Kaiser v. BMW of N. Am., LLC, No. 12-cv-01311 DMR, 2013
11 WL 1856578, at *3 (N.D. Cal. May 2, 2013).
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Having considered the parties’ briefs and proposed orders, the arguments of counsel,

13 and the record in this case, the Court ORDERS as follows:
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1.

Gardensensor’s Motion to Compel
a.

Interrogatories and Documents Related to Marketing Spend

One of Gardensensor’s claims in this action is that Black & Decker failed to abide by

17 its contractual obligation to market and commercialize the PlantSmart product when it
18 failed to support the product with marketing spend “normal for their business” as required
19 by the parties’ agreement. See Dkt. No. 96 ¶ 2; 97-10 § 3.2. Gardensensor now moves to
20 compel supplemental responses to Interrogatories Nos. 4, 7, and 12-15, which seek
21 information about marketing projections and spend, as well as sales projections and actual
22 sales data for sensor-related products and for new products launched during 2010 and 2011.
23 Dkt. No. 97-3.
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Black & Decker objects to these interrogatories based on a lack of relevance. Dkt.

25 No. 99 at 2. The Court, however, finds that the interrogatories in question appear
26 reasonably calculated to lead to the discovery of admissible evidence as to what marketing
27 efforts were “normal” for Black & Decker’s business. Black & Decker also asserts that it is
28 “overly burdensome - if not impossible -” to respond to these requests because “there is no
Case No. 12-cv-03922 NC
ORDER ON DISCOVERY DISPUTES

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1 available means to search for the information.” Id. The Court finds that Black & Decker
2 has failed to substantiate this assertion. With respect to Interrogatories Nos. 4 and 7, Black
3 & Decker’s responses are inadequate because they do not specify the factual basis for its
4 agreement to commit to a minimum marketing spend or for its understanding of what
5 marketing spend was “normal” for Black & Decker’s business.
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Black & Decker must provide supplemental responses to Interrogatories Nos. 4, 7,

7 and 12-15 by September 29, 2014. For the purposes of such responses, the phrase “new
8 product” as used in Interrogatory No. 12 means new products launched by Black & Decker
9 during the years 2010 and 2011.
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In addition, Gardensensor asserts that Black & Decker has failed to confirm that all

11 documents relating to the marketing budget and marketing spend of “comparable” products
12 have been produced. Dkt. No. 94 at 3. By September 29, 2014, Black & Decker must
13 produce the following documents and serve amended responses to the document requests
14 confirming that the following documents have been produced:
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 All documents reflecting Black & Decker’s marketing budget for Outdoor

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Portable Gardening Tools for the 2010, 2011 and 2012 holiday seasons.

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(Request for Production No. 49, Dkt. No. 97-1 at 7.)

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 All documents reflecting Black & Decker’s monthly, quarterly, and annual

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marketing budget for any gardening and outdoor products sold at any time

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during the years 2010 and 2011. (Request for Production, No. 65, Dkt. No. 97-

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2 at 6.)

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 All reports and summaries reflecting Black & Decker’s actual monthly,

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quarterly, and annual marketing expenditures for any gardening and outdoor

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products sold at any time during the years 2010 and 2011. (Request for

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Production, No. 66, Dkt. No. 97-2 at 6.)

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 All documents reflecting Black & Decker’s monthly, quarterly, and annual

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marketing budget for any sensor-based products sold at any time during the

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years 2010 and 2011. (Request for Production, No. 67, Dkt. No. 97-2 at 6.)
Case No. 12-cv-03922 NC
ORDER ON DISCOVERY DISPUTES

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 All reports and summaries reflecting Black & Decker’s actual monthly,

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quarterly, and annual marketing expenditures for any sensor-based products

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sold at any time during the years 2010 and 2011. (Request for Production, No.

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68, Dkt. No. 97-2 at 7.)

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 All documents reflecting Black & Decker’s monthly, quarterly, and annual

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marketing budget for any new products sold at any time during the years 2010

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and 2011. (Request for Production, No. 69, Dkt. No. 97-2 at 7.)

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 All documents and communications reflecting Black & Decker’s analysis of
Black & Decker’s actual monthly, quarterly, and annual marketing

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expenditures for any new products sold at any time during the years 2010 and

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2011. (Request for Productions, Nos. 70 and 71, Dkt. No. 97-2 at 7.)

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 All documents and communications reflecting what Black & Decker believes

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is or how Black & Decker measures or defines “marketing spends normal for

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[its] business” as referenced in § 3.2 in the EasyBloom Agreement. (Request

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for Production, No. 72, Dkt. No. 97-2 at 8.)

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 All documents and communications reflecting Black & Decker’s analysis of

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Black & Decker’s marketing expenditures for any sensor-based products sold

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at any time during the years 2010 and 2011. (Request for Production, No. 73,

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Dkt. No. 97-2 at 8.)

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Additionally, Gardensensor requests an adverse inference at trial in its favor

21 concerning the failure by Black & Decker “to meet its discovery obligations with respect to
22 Plaintiff’s document requests and interrogatories concerning Defendant’s ‘normal’ and
23 ‘reasonable’ marketing efforts and expenditures.” Dkt. No. 96-2 at 2. This request is
24 denied without prejudice as premature. Any proposed adverse inference instructions will be
25 taken up at the pretrial conference.
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b.

Performance Evaluations

Gardensensor moves to compel Black & Decker to produce the employee evaluations

28 for employees who worked on the PlantSmart project. Dkt. No. 96 at 7. The basis for this
Case No. 12-cv-03922 NC
ORDER ON DISCOVERY DISPUTES

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1 request is deposition testimony obtained by Gardensensor indicating that Black & Decker
2 maintained written annual reviews that evaluated Black & Decker’s employees’
3 performance on particular projects. Id. Black & Decker objects on the basis that
4 Gardensensor “never requested” these documents, and the request invades employees’
5 privacy rights. Dkt. No. 99 at 4.
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The Court finds that Gardensensor’s request appears reasonably calculated to lead to

7 the discovery of admissible evidence as to Black & Decker’s performance under the
8 contract at issue. By September 29, 2014, Black & Decker must produce the employee
9 evaluations in its possession, custody, or control, for the following employees for the years
10 2010 and 2011 that are at least in part based on those employees’ performance on the
11 PlantSmart project:
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1. Brent Patrick Pfister;

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2. DeAnn Romjue;

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3. Catherine McHugh;

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4. Christine Selby Regan;

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5. Kriston Ohm;

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6. Andrew P. Smith;

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7. Jennifer Resh Munn;

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8. Cheryl Jenner;

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9. Ivan Guo;

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10. Michael Isch;

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11. Aaron Erter;

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12. Roland Jackson;

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13. Katie Johnson;

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14. Matt Nestorick;

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15. Bill Fuchs;

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16. Kim Kennedy;

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17. Diana Janney;
Case No. 12-cv-03922 NC
ORDER ON DISCOVERY DISPUTES

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18. Jones Gu; and

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19. John Cunningham.

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The employee evaluations must be produced subject to the protective order in this

4 case, which will address the privacy concerns raised by Black & Decker.
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c.

Redactions

Gardensensor contends that Black & Decker’s production contains material that is

7 redacted without any apparent claim of privilege or other recognized exception to discovery
8 obligations, and moves to compel the production of unredacted versions. Dkt. No. 96 at 7.
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In response Black & Decker asserts, without any citation to authority, that it is

10 entitled to redact irrelevant information from otherwise relevant documents. Dkt. No. 99 at
11 4. The Court disagrees. As courts have recognized, this type of unilateral redaction is
12 disfavored, and a protective order could ensure the confidentiality of sensitive information.
13 See, e.g., Evon v. Law Offices of Sidney Mickell, No. 09-0760, 2010 WL 455476, at *2 n.1
14 (E.D. Cal. Feb. 3, 2010) (“Redaction is, after all, an alteration of potential evidence. The
15 Federal Rules sanction only very limited unilateral redaction, see Fed. R. Civ. P. 5.2.
16 Outside of these limited circumstances, a party should not take it upon him, her or itself to
17 decide unilaterally what context is necessary for the non-redacted part disclosed, and what
18 might be useless to the case.”); Williston Basin Interstate Pipeline Co. v. Factory Mut. Ins.
19 Co., 270 F.R.D. 456, 458-59 (D.N.D. 2010) (criticizing “the unilateral editing of documents
20 produced in discovery, particularly when there is a protective order in place, given the
21 suspicion and distrust that it generates, which, in turn, leads to unnecessary discovery
22 disputes and burdensome in camera inspections.”); see also Trevino v. ACB Am., Inc., 232
23 F.R.D. 612, 617 (N.D. Cal. 2006) (ordering the production of unredacted agreement
24 claimed to contain confidential financial information and trade secrets subject to protective
25 order); Holman v. Experian Info. Solutions, Inc., No. 11-cv-00180 CW (DMR), 2012 WL
26 2501085, at *6 (N.D. Cal. June 27, 2012) (ordering the production of documents in
27 unredacted form where the redactions were claimed to protect non-responsive, highly
28 sensitive business information, and finding that such information was sufficiently protected
Case No. 12-cv-03922 NC
ORDER ON DISCOVERY DISPUTES

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1 by the protective order in the case).
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By September 29, 2014, Black & Decker must produce unredacted versions of BD-

3 00060989-1003; BD-00074462-501; and BD-00074502-543.
d.

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Ansell Documents

Another discovery issue raised by Gardensensor is Black & Decker’s failure to

6 produce any documents from its senior executive Jeffrey Ansell, who directed Black &
7 Decker to cut its budget for a type of marketing that was critical to the success of
8 PlantSense. Dkt. No. 96 at 2. Black & Decker responds that no responsive documents were
9 found because any emails sent or received by Ansell or his assistant, Diane Choquette,
10 relevant to the PlantSmart project would have been purged prior to the commencement of
11 the litigation. Dkt. No. 99 at 3-4.
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By 5:00 p.m. on September 24, 2014, Black & Decker must file a declaration from

13 Choquette explaining the practice of deleting Ansell’s emails and other documents,
14 including a description of when that practice commenced and whether it ceased or
15 otherwise changed after Black & Decker had notice of potential claims by Gardensensor.
16 Black & Decker must also provide by the same deadline evidence of any efforts made to
17 preserve Ansell’s emails and documents authored by him that might be relevant to the
18 subject matter of this litigation.
e.

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Attorneys’ Fees

Gardensensor’s proposed order contains a request that the Court order Black &

21 Decker to pay Gardensensor’s reasonable attorney’s fees “with respect [sic] the foregoing
22 discovery issues.” Dkt. No. 96-2 at 2. This request is denied without prejudice.
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2.

Black & Decker’s Motion for Protective Order

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Black & Decker moves for a protective order preventing the deposition of Jeffrey

25 Ansell on the grounds that the notice of deposition was not served in a reasonably timely
26 manner and Gardensensor failed to meet and confer regarding the availability of the witness
27 and counsel as required by local rules. Dkt. No. 100 at 1. The parties stipulated and the
28 Court ordered that the deposition of Ansell be taken on September 5, and that documents
Case No. 12-cv-03922 NC
ORDER ON DISCOVERY DISPUTES

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t
position be produced by August 18 Dkt. Nos. 83-84. L
p
y
8.
Later, at the
1 relevant to that dep
r
ered
he
ons
tnesses,
2 parties’ stipulated request, the Court orde that “th depositio of Defendant’s wit
ue
M
hn
kamp, Kath Ohm, De
hy
eAnn Romju and Jeffr Ansell, will be
frey
3 Cathy McHugh, Joh Weetenk
S
b
e
of
nts
4 held on or before September 19, 2014,” based on the delayed production o documen by
D
9-90. On September 3 Gardense
S
3,
ensor’s coun took th
nsel
he
5 Black & Decker. Dkt. Nos. 89
d
o
r
cker’s final production Dkt. No. 100 at
n.
6 Ansell deposition off calendar pending Black & Dec

7 5-6.
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While the Co does no approve of Gardense
W
ourt
ot
o
ensor’s last-minute not taking the
tice

ndar, couns for both parties wer responsib for comm
sel
re
ble
municating about
g
9 deposition off calen
edule of dep
positions an anticipate documen productio
nd
ed
nt
ons. The fa
ailure to do so
10 the sche
0
ssarily burdening the Court, the pa
C
arties, and t witness with this
the
11 resulted in unneces
1
ry
tion
y
d
12 discover dispute. Given that the deposit of Ansell appears reasonably calculated to lead
2
iscovery of admissible evidence, and the issu concernin the docu
a
ue
ng
ument destr
ruction
13 to the di
3
ure
uce
cuments fro Ansell, B
om
Black & De
ecker’s mot
tion for prot
tective
14 and failu to produ any doc
4
he
on
e
September 2 2014, a is limite to 5
25,
and
ed
15 order is denied. Th depositio must take place on S
5

16 hours.
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IT IS SO OR
T
RDERED.

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Date: Septem
mber 22, 201
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_____
_________
__________
____
Nath
hanael M. C
Cousins
Unit States M
ted
Magistrate J
Judge

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ORDER ON DISCO
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OVERY DISPUTES

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