Daimler AG v. A-Z Wheels LLC et al
Filing
43
ORDER granting in part and denying in part 39 Joint Motion for Determination of Discovery Dispute presenting Plaintiff's Motion to Compel further discovery responses from Defendants. As explained in the attached Order, Plaintiffs motion to co mpel further responses and production is GRANTED as follows: 1. The Moalemi Defendants must provide full answers to the each of the identified interrogatories as required by Rule 33, Fed. R. Civ. P. 2. The Moalemi Defendants must produce document s within their possession, custody or control responsive to the identified requests for production. 3. Answers must be provided and responsive documents, if they exist, must be produced within 14 days of this Order. 4. No request for sanctions having been made, no sanctions will be imposed at this time. Signed by Magistrate Judge Mitchell D. Dembin on 09/07/17. (Dembin, Mitchell)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
12
13
14
15
16
DAIMLER AG, a German
corporation,
Case No.: 16cv0875-JLS-MDD
ORDER ON JOINT MOTION
FOR DETERMINATION OF
DISCOVERY DISPUTE
Plaintiff,
v.
A-Z WHEELS, LLC d/b/a
USARim.com, et al.,
[ECF NO. 39]
Defendants.
17
18
Before the Court is the Joint Motion of the parties to determine a
19
discovery dispute filed on August 22, 2017. (ECF No. 39). The dispute
20
challenges the responses by certain Defendants, the “Moalemi Defendants,”
21
Rasool “Russ” Moalemi, Joshua Moalemi and Ryan Moalemi, to ten
22
interrogatories and 21 requests for production. (Id.).
23
In summary, this case involves allegations that Defendants have been
24
in the business of obtaining and selling automotive wheels, online and from a
25
physical location, that violate certain patents and trademarks belonging to
26
Plaintiff. (See ECF No. 33).
27
1
16cv0875-JLS-MDD
1
2
LEGAL STANDARD
The Federal Rules of Civil Procedure authorize parties to obtain
3
discovery of “any nonprivileged matter that is relevant to any party’s claim or
4
defense and proportional to the needs of the case . . . .” Fed. R. Civ. P.
5
26(b)(1). “Information within the scope of discovery need not be admissible in
6
evidence to be discoverable.” Id. District courts have broad discretion to
7
limit discovery where the discovery sought is “unreasonably cumulative or
8
duplicative, or can be obtained from some other source that is more
9
convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C).
10
An interrogatory may relate to any matter that may be inquired under
11
Rule 26(b). Fed. R. Civ. P. 33(a)(2). The responding party must answer each
12
interrogatory by stating the appropriate objection(s) with specificity or, to the
13
extent the interrogatory is not objected to, by “answer[ing] separately and
14
fully in writing under oath.” Rule 33(b). The responding party has the option
15
in certain circumstances to answer an interrogatory by specifying responsive
16
records and making those records available to the interrogating party. Rule
17
33(d).
18
Similarly, a party may request the production of any document within
19
the scope of Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the
20
response must either state that inspection and related activities will be
21
permitted as requested or state an objection to the request, including the
22
reasons.” Rule 34(b)(2)(B). If the responding party chooses to produce
23
responsive information, rather than allow for inspection, the production must
24
be completed no later than the time specified in the request or another
25
reasonable time specified in the response. Id. An objection must state
26
whether any responsive materials are being withheld on the basis of that
27
objection. Rule 34(b)(2)(C). An objection to part of a request must specify the
2
16cv0875-JLS-MDD
1
part and permit inspection or production of the rest. Id. The responding
2
party is responsible for all items in “the responding party’s possession,
3
custody, or control.” Rule 34(a)(1). Actual possession, custody or control is
4
not required. Rather, “[a] party may be ordered to produce a document in the
5
possession of a non-party entity if that party has a legal right to obtain the
6
document or has control over the entity who is in possession of the
7
document.” Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995).
8
9
10
DISCUSSION
A. Interrogatories 1, 2, 6, 9, 10, 11, 12, 13, 14, 19
For each of these interrogatories, an identical issue is presented.
11
Interrogatories 1 and 13 have additional issues which will be discussed
12
separately below. But, as to each interrogatory, including 1 and 13,
13
Defendants respond by referring Plaintiff to the transcript of a deposition of
14
Defendant Russ Moalemi taken in connection with proceedings before the
15
U.S. International Trade Commission (“ITC”) in November 2016. Defendants
16
claim not to have a copy of the transcript but assert that the answers sought
17
are there and are in Plaintiff’s possession. Plaintiff asserts these answers do
18
not comply with the requirements of Rule 33.
19
In short, Plaintiff is correct. Plaintiff is entitled to a “full answer.” Rule
20
33(b)(3). To the extent that Defendants are attempting to avail themselves of
21
the option to provide business records provided at Rule 33(d), that rule
22
presupposes that the records are to be produced, or have been produced, by
23
the responding party and the responding party must specify where in the
24
responsive records the answers to the interrogatory lies. The ITC deposition
25
transcript apparently is not a business record of Defendants and, regardless,
26
Defendants have not identified the location in the transcript of the answers
27
to each interrogatory.
3
16cv0875-JLS-MDD
1
Consequently, to the extent Defendants rely on their reference to the
2
Russ Moalemi ITC deposition transcript, the Court finds the answers
3
inadequate and GRANTS Plaintiff’s motion to compel further responses.
4
5
6
7
With regard to issues specific to certain interrogatories, the Court finds
as follows:
1. Interrogatory 1 (ECF No. 39 at 7)
This interrogatory calls for each of the Moalemi Defendants to describe
8
his role in various business entities, also defendants in this action. Even if
9
reference to the ITC deposition transcript of Russ Moalemi otherwise was
10
sufficient, Plaintiff is correct that it cannot serve as the answer for the other
11
Moalemi Defendants. A full answer is required regarding each of the
12
Moalemi Defendants.
13
14
2. Interrogatory 13 (ECF No. 39 at 16)
This interrogatory requires the Defendants to describe the role of “John
15
Doe,” referenced in the ITC deposition of Russ Moalemi, including his
16
address, specific tasks performed for Defendants and dates. In addition to its
17
misplaced reliance on the ITC transcript, Defendants also offer the following:
18
19
20
21
22
23
24
25
26
Concerning Mr. Doe’s address, such discovery is not appropriate or
proportional given that counsel represents Mr. Doe (if he can be found)
so he should not be contacted, including at his address.
(ECF No. 39 at 17). Defendants also state that Mr. Doe was an independent
contractor, not an employee and worked long ago as a sales associate. (Id.)
Defendants’ objection that the requested discovery is not “appropriate
or proportional” is OVERRULED. The fact that counsel for Defendants may
also represent Mr. Doe is not a basis for the Moalemi Defendants to withhold
this information.
27
4
16cv0875-JLS-MDD
1
2
3
4
5
B. Requests for Production 1, 2, 3, 4, 5, 6, 8, 10, 11, 14, 15, 17, 18, 19,
20, 21, 23, 24, 25, 26, 27
There is a common thread to each of the responses to these Requests for
Production so that a common ruling is appropriate. As an example:
1. Request for Production (“RFP”) No. 1 (ECF No. 39 at 19)
6
Plaintiff requests:
7
All documents describing, reflecting, referring or relating to
manufacture, purchase, importation into the United States,
distribution, and/or sale of any of Defendant’s Wheels by you or on your
behalf between April 11, 2010 and the present.
8
9
10
11
12
13
14
Defendant responds to each contested RFP as follows:
Subject to and without waiving the general objections, each Defendant
states that he has never sold and does not currently sell any of the
accused wheels, and has never possessed and does not currently possess
any of the requested documents.
15
Assuming that the term “Defendant’s Wheels” is understood by the
16
parties to mean “accused wheels” as used by Defendants, the response is
17
legally sufficient, except for RFP Nos. 8, 19 and 25, discussed below. One
18
cannot produce what one does not possess.
19
The Court believes that some words of caution are appropriate. This
20
lawsuit alleges that the Moalemi Defendants, through various corporate
21
entities, imported and sold automotive wheels that allegedly infringe
22
Plaintiff’s patents and marks. Plaintiff claims to have records reflecting
23
Defendants’ advertisements for such wheels. The Court is concerned that
24
Defendants’ responses – particularly that they cannot produce any
25
documents reflecting any responsive sales – may prove problematic for
26
Defendants.
27
The Court is compelled to remind Defendants that the term
5
16cv0875-JLS-MDD
1
“possession” does not require actual possession, custody or control. As
2
mentioned earlier, “[a] party may be ordered to produce a document in the
3
possession of a non-party entity if that party has a legal right to obtain the
4
document or has control over the entity who is in possession of the
5
document.” Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995). If
6
any of the Moalemi Defendants has the legal right to obtain responsive
7
documents or has control over an entity which is in possession of responsive
8
documents, the documents must be produced. As this case progresses, the
9
Court will consider sanctions under either Rule 26(g) or 37, as appropriate,
10
11
12
upon a finding that documents were improperly withheld.
1. RFP No. 8 (ECF No. 39 at 26)
This RFP calls for the production of tax returns for the Moalemi
13
Defendants and any entity on their behalf relating to sales of automotive
14
wheels for fiscal year 2010 to the present. As mentioned above, Defendants
15
provided the identical response, quoted above in connection with RFP No. 1,
16
to each RFP. This RFP is not limited to “accused wheels.” It calls for tax
17
returns reflecting sales of automotive wheels, not the accused wheels.
18
Accordingly, to the extent that the Moalemi Defendants have tax returns
19
reflecting any sales of automotive wheels during the identified time period,
20
they must be produced.
21
22
2. RFP No. 19 (ECF No. 39 at 33)
This RFP calls for the production relating to quality control of wheels
23
sold or offered for sale since April 11, 2010. As with RFP No. 8, this RFP is
24
not limited to “accused wheels.” Defendants’ boilerplate response may be
25
insufficient. To the extent that the Moalemi Defendants have responsive
26
documents regarding “wheels,” the documents must be produced.
27
6
16cv0875-JLS-MDD
1
2
3. RFP No. 25 (ECF No. 39 at 38)
This is a “catchall” RFP, requiring Defendants to produce all documents
3
identified in responses to Plaintiff’s First Set of Interrogatories. Defendants’
4
standard response just does not fit here. A proper response is required.
5
6
7
8
9
10
CONCLUSION AND ORDER
Plaintiff’s motion to compel further responses and production, as
presented in the instant Joint Motion, is GRANTED.
1. The Moalemi Defendants must provide full answers to the each of
the identified interrogatories as required by Rule 33, Fed. R. Civ. P.
2. The Moalemi Defendants must produce documents within their
11
possession, custody or control responsive to the identified requests
12
for production.
13
14
15
16
17
18
3. Answers must be provided and responsive documents, if they exist,
must be produced within 14 days of this Order.
4. No request for sanctions having been made, no sanctions will be
imposed at this time.
IT IS SO ORDERED.
Dated: September 7, 2017
19
20
21
22
23
24
25
26
27
7
16cv0875-JLS-MDD
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?