Davison Design & Development Inc. et al v. Riley

Filing 197

ORDER by Judge Hamilton granting in part and denying in part 189 Motion for Discovery (pjhlc2, COURT STAFF) (Filed on 6/14/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVISON DESIGN & DEVELOPMENT
INC., et al.,

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Plaintiffs,

No. C 11-2970 PJH

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v.
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CATHY RILEY,
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Defendant.
_______________________________/

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For the Northern District of California

United States District Court

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ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
LEAVE TO SERVE INTERROGATORIES
IN EXCESS OF 25

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Plaintiffs’ motion for leave to serve interrogatories in excess of 25 came on for

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hearing before this court on June 12, 2013. Plaintiffs Davison Design and Development, et

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al. (“plaintiffs”) appeared through their counsel, Leeor Neta. Defendant Cathy Riley

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(“defendant”) appeared through her counsel, Daniel Balsam. Having read the papers filed

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in conjunction with the motion and carefully considered the arguments and the relevant

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legal authority, and good cause appearing, the court hereby GRANTS in part and DENIES

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in part plaintiffs’ motion, for the reasons stated at the hearing and as follows.

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This is a declaratory judgment suit brought by plaintiffs. Plaintiffs seek an order

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stating that some 115 emails sent from plaintiffs to defendant do not violate California’s

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anti-spam law, Cal. Bus. & Prof. Code § 17529.5. As the parties seeking declaratory

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judgment, plaintiffs bear the burden of showing that each email does not violate any

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provision of section 17529.5. Specifically, plaintiffs bear the burden of showing that none of

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the emails contain or are “accompanied by a third-party’s domain name without the

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permission of the third-party.” Cal. Bus. & Prof. Code § 17529.5(a). Plaintiffs also bear the

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burden of showing that none of the emails contain or are accompanied by “falsified,

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misrepresented, or forged header information.” Cal. Bus. & Prof. Code § 17529.5(b).

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Finally, plaintiffs bear the burden of showing that none of the emails have “a subject line

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that a person knows would be likely to mislead a recipient, acting reasonably under the

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circumstances, about a material fact regarding the contents or subject matter of the

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message.” Cal. Bus. & Prof. Code § 17529.5(c). No discovery is needed from defendant in

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order for plaintiffs to prove their case. Instead, all relevant information lies either with

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plaintiffs themselves, or with third parties. Accordingly, with respect to the 575

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interrogatories related to these three provisions of section 17529.5, plaintiffs’ motion is

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DENIED.

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Separate from plaintiffs’ declaratory judgment claim, defendant also asserts counter-

seven emails with her own name in the “from” line. Because these seven emails could

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For the Northern District of California

claims with respect to seven emails. Specifically, defendant alleges that she received

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United States District Court

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potentially give rise to a claim of fraud, the court previously held that defendant’s counter-

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claims (as to only these seven emails) were not preempted by the federal CAN-SPAM Act.

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See Dkt. 188. The court also noted that defendant “still bears the burden of alleging facts

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showing reliance and damages as to those seven emails.” Id. at 2. Thus, plaintiffs are

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justified in seeking discovery as to defendant’s claims of reliance and damages as to those

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seven emails. Plaintiffs seek to serve 14 interrogatories related to defendant’s counter-

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claims - one on reliance and one on damages for each of the seven emails. As to those

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fourteen interrogatories only, plaintiffs’ motion is GRANTED.

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At the hearing, the court also noted that plaintiffs filed a motion for protective order

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on June 3, 2013, seeking to shield themselves from defendant’s discovery requests. As

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stated at the hearing, the parties are ordered to meet and confer regarding the scope of

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defendant’s discovery requests. This meet and confer must occur before the June 17,

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2013 deadline for defendant’s opposition to the motion for protective order.

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IT IS SO ORDERED.

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Dated: June 14, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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