Certified Nutraceuticals, Inc v. Avicenna Nutraceutical, LLC et al

Filing 29

ORDER denying 24 Motion to Reopen Discovery Related to RFPs 4 and 6. Signed by Magistrate Judge Bernard G. Skomal on 2/13/2018. (anh)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CERTIFIED NUTRACEUTICALS, INC., 12 Plaintiff, 13 ORDER DENYING PLAINTIFF CERTIFIED NUTRACEUTICAL INC.’S MOTION TO REOPEN DISCOVERY RELATED TO RFPs 4 AND 6 v. 14 Case No.: 16cv2810 BEN (BGS) AVICENNA NUTRACEUTICAL, LLC, Defendant. 15 16 [ECF 24] 17 18 19 On December 7, 2017 the Court allowed a limited re-opening of discovery as 20 21 follows: 26 Fact discovery is reopened, but only as to Plaintiff’s First Set of Request for Production of Documents 4 and 6, and only to the extent Defendant has not already produced the requested documents. Plaintiff may not modify RFPs 4 and 6 and Defendant’s objections are limited to its previously stated objections. If Defendant does not seek to enforce any of its previously stated objections, Defendant shall supplement its production to RFPs 4 and 6 by January 3, 2018. 27 (Court’s Dec. 7, 2017 Order [ECF 20] at ¶ 1.) The Court’s Order further provided: 28 /// 22 23 24 25 1 16cv2810 BEN (BGS) 1 2 3 4 5 6 If Defendant’s supplemental production to RFPs 4 and 6 requires any additional fact discovery by either party, the parties must jointly contact the Court by January 10, 2018 to seek leave to conduct specifically identified discovery. Any party seeking additional discovery should be prepared to address why the discovery was not previously sought, how the limited supplemental production ordered here justifies additional discovery, and how long it will take to complete. 7 (Id. at ¶ 5.) Plaintiff now seeks to reopen discovery pursuant to this Order. (Pl.’s Mot. to 8 Reopen Discovery Related to RFPs 4 & 6 (“Pl.’s Mot.”) [ECF 24].) In sum, Plaintiff 9 concedes that Defendant produced numerous invoices and purchase orders regarding 10 Neocell Corporation, but alleges that this production is wholly incomplete, bearing 11 inconsistent amounts and gaps in timing. (Id. at 2.) Specifically Plaintiff states that 12 Neocell began doing business with Defendant in June of 2014, yet the invoices do not 13 begin until January 2016. Further, the invoices stop in June of 2017, over six months 14 ago. And the invoices total $955,140, yet the purchase orders total $982, 870. (Id.) As 15 regards the emails, Plaintiff claims that while the supplemental production includes 16 emails from other customers, it produces no emails from Neocell. (Id.) On this basis, 17 Plaintiff seeks to directly subpoena Neocell for documents and information to ascertain 18 whether they exist. (Id. at 4.) Plaintiff requests two additional months of fact discovery 19 to accomplish this task. (Id.) 20 In response, Defendant claims that that all agreed upon documents have been 21 produced and a verification under oath has been provided attesting to the production’s 22 completeness. (Def.’s Opp’n [ECF 25] at 3.) Defendant asserts that it has produced all 23 invoices and purchase orders with NeoCell, a fact that is attested to in the signed 24 verification. (Id.) Defendant attaches the verification under oath by Ali Elnajjar, Chief 25 Executive Officer of Avicenna Nutraceutical, LLC. (Adams Decl., Ex. B, [ECF 25-3 at 26 27 28 2 16cv2810 BEN (BGS) 1 101]. As regards the lack of responsive emails, Defendant points to an agreement with 2 Plaintiff which limited the email production to those relating to any representation by 3 Defendant that its products are patented, or emails necessary to reflect any sales not 4 reflected in the purchase orders and invoices. (ECF 25 at 3).2 Defendant states that there 5 are no emails responsive to this narrow scope. (Id.) 6 Of note, Plaintiff has not called into question his agreement memorialized in ECF 7 25-2 at 3-4 with Defendant which limits the supplemental discovery to production of all 8 invoices and purchase orders for sales of Defendant’s collagen to Vibrant, Emenee, 9 NeoCell, and any other third party up to January 3, 2018; all emails relating to any 10 representation by Defendant that is products are patented, or emails necessary to reflect 11 any sales not reflected in the purchase orders and invoices. Plaintiff’s issue in this 12 dispute is whether or not the Defendant is withholding this agreed upon discovery, which 13 is based on alleged gaps and inconsistencies in the invoices and purchase orders, as well 14 as the lack on any emails regarding NeoCell. The Defendant in turn has provided a 15 declaration under penalty of perjury that it has provided all the discovery agreed upon. 16 Pursuant to the Court’s December 7, 2017 Order, Plaintiff bears the burden to 17 show how the supplemental discovery provided by Defendant justifies the additional 18 discovery he now requests. Plaintiff’s stated purpose for requesting this additional 19 discovery is to ascertain whether or not Defendant is indeed withholding discovery from 20 Plaintiff. (Pl.’s Mot. at 4.) The Court finds that Plaintiff’s disbelief of Defendant does 21 not meet this burden, and therefore does not justify reopening discovery. Martin v. State 22 Farm Mut. Ins. Co., No. 3:10-cv-0144, 2011 WL 13228851 (S.D. W. Va. Jan. 20, 2011) 23 (“The Court cannot compel defendants to produce documents ‘based solely on opposing 24 25 26 27 28 The Court cites the CM/ECF pagination for the documents attached to Defendant’s Opposition. 2 Defendant attaches an email exchange with Plaintiff which corroborates this agreement. (ECF 25-2 at 3-4.) 1 3 16cv2810 BEN (BGS) 1 speculation and belief that responsive documents exists and that the producing party is 2 withholding them”); Hubbard v. Potter, 247 F.R.D. 27, 29 (D. D.C. 2008) (“Instead of 3 chasing the theoretical possibility that additional documents exist, courts have insisted 4 that the documents that have been produced permit a reasonable deduction that other 5 documents may exist”); see also Heilman v Silva, No. 13cv2984 JLS (MDD), 2015 WL 6 1632693, at *4 (S.D. Cal. April 13, 2015) (“Plaintiff provides no basis (besides his own 7 disbelief) for concluding that the Defendants’ responses were evasive”). 8 The Court also notes that under Federal Rule of Civil Procedure 26(e)(1)(A) the 9 parties are under a continuing obligation to timely supplement responses to discovery if 10 the party determines its prior responses are incomplete or incorrect. Failure to comply 11 with this obligation may result in sanctions, including being precluded from using that 12 information, payment of reasonable expenses caused by the failure to supplement, and 13 “other appropriate sanctions.” Fed. R. Civ. P. 37(c)(1). 14 Plaintiff’s Motion to Reopen Discovery is DENIED. 15 IT IS SO ORDERED. 16 Dated: February 13, 2018 17 18 19 20 21 22 23 24 25 26 27 28 4 16cv2810 BEN (BGS)

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?