Cellspin Soft, Inc. v. Fitbit, Inc.

Filing 266

ORDER RE DISCOVERY LETTER NO 3 by Magistrate Judge Kandis A. Westmore denying 254 Discovery Letter Brief. (wft, COURT STAFF) (Filed on 12/8/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CELLSPIN SOFT, INC.,
Plaintiff,

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ORDER RE DISCOVERY LETTER NO.
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v.

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Re: Dkt. No. 254

FITBIT LLC,
Defendant.

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United States District Court
Northern District of California

Case No. 17-cv-05928-YGR (KAW)

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On October 25, 2021, the parties filed the instant discovery letter concerning Plaintiff

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Cellspin Soft, Inc.’s response to Defendants’ Request for Production (“RFP”) No. 2. (Discovery

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Letter, Dkt. No. 254.) RFP No. 2 concerns documents relating to offers to license or sell

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Plaintiff’s patents, including infringement allegations, notice letters, responses from third parties,

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and communications regarding efforts to license or sell. (Id. at 1.) Previously, on September 13,

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2021, the Court ordered Plaintiff to conduct a further search, and to produce any additional

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responsive documents within ten days. (Dkt. No. 239 at 3.) Defendants assert that Plaintiff’s

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production is still incomplete, and that Plaintiff continued to produce documents after the Court’s

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ten-day deadline. (Discovery Letter at 1-2.) Plaintiff, in turn, states that it has produced all

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responsive documents.2 (Id. at 4-5.)

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Since this case was referred to the undersigned for discovery purposes in July 2021, the Court
has resolved two discovery letters in this case, a motion to amend invalidity contentions, and a
motion to quash, as well as a discovery letter, a motion to add new infringing products, and a
motion to amend invalidity contentions in the related cases. This does not include discovery filings
that were terminated for failure to comply with deadlines or standing orders.
In a footnote, Plaintiff complains that the Court’s five-page limit “may not be sufficient to avoid
a miscarriage of justice,” and requests a hearing, additional briefing, and additional exhibits. (See
Discovery Letter at 4 n.1.) Plaintiff should have filed a request to extend the page limit and attach
additional exhibits prior to filing the letter, rather than making the request in a footnote. Further,
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The Court deems this matter suitable for disposition without a hearing pursuant to Civil
Local Rule 7-1(b), and rules as follows.

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First, the Court DENIES Defendants’ request to require additional production of

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documents. Plaintiff states that it has complied with the Court’s order and produced responsive

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documents. (Discovery Letter at 3, 5.) Further, in its October 24, 2021 supplemental response to

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RFP No. 2, Plaintiff affirmatively “confirms that it has produced all documents responsive to this

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request.” (Discovery Letter, Exh. 3 at 2 (emphasis added).) Plaintiff also stated that it “is not

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withholding production of any documents responsive to this request on the basis of privilege.”

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(Id. at 6.) Given these clear representations, the Court will not presume that Plaintiff would make
false representations to the Court or in its discovery responses. See Baird v. BlackRock

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United States District Court
Northern District of California

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Institutional Trust Co., Case No. 17-cv-1892-HSG (KAW), 2019 U.S. Dist. LEXIS 29720, at *7

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(N.D. Cal. Feb. 25, 2019). If Plaintiff states that it has produced all responsive documents, the

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Court will take Plaintiff at its word.

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While Defendants identify potential gaps in the production, this does not mean Plaintiff

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actually possesses the documents. As the Court noted in its prior order, it “cannot compel

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production of documents that Plaintiff no longer possesses.” (Dkt. No. 239 at 3.) Again, to the

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extent Defendants have a sufficient basis to believe Plaintiff destroyed documents, Defendants

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may bring a motion for sanctions based on spoliation. Further, given Plaintiff’s clear statement

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that it has already produced all responsive documents, if Plaintiff was to later produce responsive

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documents, Defendants may have grounds to seek evidentiary sanctions prohibiting Plaintiff from

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using the late-produced documents.

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Second, the Court DENIES Defendants’ request to require Plaintiff’s CEO, Gurvinder

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Singh, to submit a sworn declaration stating what efforts he made to search for documents and

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why certain documents were not preserved and produced. (Discovery Letter at 3.) The Court

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finds that Defendants have not provided a basis for such a requirement.

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Plaintiff provides no specific explanation for why any of this is needed, and the Court observes
that Plaintiff spends a insignificant portion of its letter complaining about the ESI order, an issue
not before the Court. (See Discovery Letter at 4-5.) The Court denies all of these requests.
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Finally, the Court DENIES Defendants’ request to prohibit Plaintiff from using all

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responsive documents produced after the Court’s ten-day deadline. (Discovery Letter at 3.)

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Defendants assert that this is necessary “to remedy the prejudice inflicted by [Plaintiff]’s untimely

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productions,” but provide no information as to that alleged prejudice. (Id.) Thus, the Court is

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unable to find prejudice and declines to exclude those documents. The Court reiterates, however,

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that given Plaintiff’s representation that it has now produced all responsive documents,

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Defendants would likely have a basis for requesting sanctions prohibiting Plaintiff from using any

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further responsive documents produced after this order.

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United States District Court
Northern District of California

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This order disposes of Dkt. No. 254.
IT IS SO ORDERED.
Dated: December 8, 2021
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KANDIS A. WESTMORE
United States Magistrate Judge

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