Caldwell v. Nordic Naturals, Inc.

Filing 71

ORDER re: discovery dispute at 70 . Signed by Judge Edward M. Chen on 11/25/2024. (emclc1, COURT STAFF) (Filed on 11/25/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHERYL CALDWELL,

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Plaintiff,

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United States District Court
Northern District of California

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Case No. 23-cv-02818-EMC
ORDER RE: DISCOVERY DISPUTE

v.
NORDIC NATURALS, INC.,

Docket No. 70

Defendant.

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Plaintiff Cheryl Caldwell has filed a putative class action on behalf of herself and a

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nationwide class of those similarly situated against Defendant Nordic Naturals, Inc., based on the

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sale of its dietary supplement product “Ultimate® Omega 2X.” Compl. ¶ 12. Plaintiff claims that

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Defendant’s use of “2X” in conjunction with “Ultimate Omega” on the front of the package

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misleads consumers into thinking that there is double the amount of omega-3 (“omega”) per

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serving than the amount of omega in the Nordic Naturals product named “Ultimate® Omega.”

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Compl. ¶ 12. The Plaintiffs, and putative class representatives, are from California, Illinois,

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Florida and New York. The Parties close of fact discovery (pre-class certification) is 11/26/2024.

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Parties filed a joint letter brief regarding the scope of allowed discovery prior to class

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certification. Dkt. No. 70. Plaintiff served Defendant with Interrogatories 4-5 and Requests for

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Production 2-5 seeking all nationwide and California gross retail sales and units sold of the

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Product. Defendant produced data for sales within the state of California, and only from their

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direct-to-consumer sales of their “Ultimate Omega 2X” fish oil product.

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Plaintiffs argue nationwide sales are relevant to their claims, as well as sales to to brick-

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and-mortar retailers, wholesalers, and distributors. Defendant states they produced (or will

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produce) data for states from which Plaintiffs reside, and for direct-to-consumer sales only

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because that is the scope of the potential relevance. Defendant argues Plaintiffs are unlikely to be

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able to certify a nationwide class, thus discovery regarding nationwide sales is not relevant.

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Further, Defendant argues sales made directly to consumers are the only relevant sales, as opposed

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to sales to third-parties, who then sell to consumers.

United States District Court
Northern District of California

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The Court orders Defendant to supplement its responses and produce nationwide sales, and

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all units sold to retailers, wholesalers, and distributors. Hall v. Marriott Int’l, Inc., No.

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319CV01715JLSAHG, 2021 WL 1906464, at *19 (S.D. Cal. May 12, 2021) (compelling

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defendant to produce California and nationwide revenue data, finding the information relevant

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“for the purposes of developing a damages model, distribution plan, and determining the scope of

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the case for settlement discussions”); Seegert v. Rexall Sundown, Inc., No. 17CV01243JAHJLB,

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2019 WL 12044514, at *4 (S.D. Cal. Mar. 26, 2019) (compelling production of third-party sales

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data to wholesalers in a consumer class action challenging a dietary supplement).

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It is premature at this stage for Defendant to argue that a nationwide class could not be

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certified, or that nationwide sales are not relevant. Hawkins v. Kroger Co., No. 15CV2320-

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JM(BLM), 2019 WL 4416132 (S.D. Cal. Sept. 16, 2019) (“The Court did not bifurcate discovery

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[ ] so the parties are permitted to conduct discovery relevant to both class certification and the

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merits of the case.”) Additionally, sales of all retail and units sold could be relevant to Plaintiff’s

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damages model for a nationwide class, as they will be required to submit, at minimum, a proposal

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for calculating damages on a class-wide basis. Edwards v. The First Am. Corp., 385 F.App’x 629,

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631 (9th Cir. 2010) (internal citations omitted) (finding that nationwide discovery provides

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plaintiffs the “opportunity to present evidence as to whether a class action [is] maintainable”).

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IT IS SO ORDERED.

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Dated: November 25, 2024

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______________________________________
EDWARD M. CHEN
United States District Judge
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