4WEB, Inc. v. NuVasive, Inc.

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 4WEB, INC. and 4WEB, LLC, Case No.: 24-cv-1021-JLS-MMP

11 Plaintiffs, ORDER GRANTING 4WEB’S 12 v. MOTION TO COMPEL DISCOVERY 13 NUVASIVE, INC.,

14 Defendant. [ECF No. 177] 15 16 17 Before the Court is 4WEB’s motion to compel NuVasive to produce documents 18 responsive to Requests for Production (“RFP”) 40 and 75 and answer Interrogatories 3–5. 19 ECF No. 177.1 4WEB also seeks an award of reasonable fees and expenses incurred in 20 bringing part of this motion. Id. at 14–15. NuVasive filed an opposition, to which 4WEB 21 replied. ECF Nos. 182, 190.2 4WEB later sought leave to file a supplemental reply, which 22 the Court granted. ECF Nos. 231, 253, 257. For the reasons set forth below, the Court 23 GRANTS 4WEB’s motion to compel in its entirety. ECF No. 177. 24 25 26 1 An unredacted version of this motion and certain exhibits has been filed under seal as 27 ECF No. 186. The Court does not reference any material warranting sealing in this Order.

28 1 I. LEGAL STANDARD 2 Federal Rule of Civil Procedure (“Rule”) 26(b)(1) establishes the scope of discovery 3 as follows: 4 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the 5 case, considering the importance of the issues at stake in the action, the 6 amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and 7 whether the burden or expense of the proposed discovery outweighs its likely 8 benefit.

9 “Information within this scope of discovery need not be admissible in evidence to be 10 discoverable.” Id. 11 Rule 34 authorizes a party to request the production of documents and electronically 12 stored information (“ESI”) from another party within the scope of Rule 26(b). Fed. R. Civ. 13 P. 34(a). When responding to a request under Rule 34, a party must produce all relevant 14 documents or information in its “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). 15 Rule 34(b) sets out specific procedures for both requests and responses under Rule 34. 16 Unless the parties agree or the Court orders otherwise, “[a] party must produce documents 17 as they are kept in the usual course of business or must organize and label them to 18 correspond to the categories in the request[.]” Fed. R. Civ. P. 34(b)(2)(E)(i). “If a request 19 does not specify a form for producing electronically stored information, a party must 20 produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable 21 form or forms[.]” Fed. R. Civ. P. 34(b)(2)(E)(ii). 22 An interrogatory propounded under Rule 33 “may relate to any matter that may be 23 inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a)(2). Rule 33 provides “[a]n 24 interrogatory is not objectionable merely because it asks for an opinion or contention that 25 relates to fact or the application of law to fact[.]” Id. “The grounds for objecting to an 26 interrogatory must be stated with specificity” and “[a]ny ground not stated in a timely 27 objection is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 28 33(b)(4). Any interrogatory not objected to must “be answered separately and fully in 1 writing under oath.” Fed. R. Civ. P. 33(b)(3). In lieu of a narrative answer, Rule 33(d) 2 provides an option to produce business records where the answer to an interrogatory may 3 be determined by examining or compiling business records, provided other requirements 4 are met. Fed. R. Civ. P. 33(d). 5 Any party, on notice to other parties and all affected persons, may apply for an order 6 compelling discovery. Fed. R. Civ. P. 37(a)(1). Rule 37 provides for an entry of an order 7 compelling discovery where “a party fails to answer an interrogatory submitted under Rule 8 33” or “a party fails to produce documents . . . as requested under Rule 34.” Fed. R. Civ. 9 P. 37(a)(3)(B)(iii), (iv). Where a court grants a motion to compel discovery, Rule 37(a)(5) 10 requires the court to order the “party or deponent whose conduct necessitated the motion, 11 the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses 12 incurred in making the motion, including attorney’s fees” unless the movant failed to meet 13 and confer, the objection was substantially justified, or other circumstances mitigate 14 against awarding expenses. Fed. R. Civ. P. 37(a)(5). 15 II. ANALYSIS 16 The parties have extensively litigated discovery in this case, and this Order is merely 17 one component in this vast discovery universe. Accordingly, the Court will not address the 18 parties’ protracted history of discovery litigation; instead, the Court addresses the relevant 19 background in its discussion of the issues below. 20 A. RFP 40 and Interrogatories 3–5 21 1. Relevant Background 22 RFP 40 requests: 23 Documents sufficient to show the value, costs (fixed and variable), revenue, profits (gross and net), sales price(s), and other financial metrics of or 24 attributable to each Accused Product, by month, year, or other reporting 25 period, from the earliest sale date of the first-sold Accused Product to the present, and documents sufficient to show related projections, and documents 26 27 28 1 sufficient to show operating profit for the business segment in which the Accused Products sit within NuVasive. 2

3 ECF No. 133 at 13;3 see ECF No. 177-3 at 16. The Court already ruled on a discovery 4 dispute regarding RFP 40 in its March 17 Order. ECF No. 145 at 16. 4WEB asserted 5 NuVasive’s production of financial data (NUVA0011981, NUVA0011982) was 6 insufficient because it did not include a breakdown in subcategories of costs of goods sold. 7 Id. 4WEB therefore sought to compel sales data by product regarding: (i) gross revenue, 8 (ii) net revenue, (iii) cost of goods sold by line item, (iv) selling, general, and administrative 9 (SG&A) expenses by line item, (v) royalty payments, (vi) other costs, and (vii) all items 10 supporting gross to net calculations. Id. In its response to that motion, NuVasive 11 represented it had “no objection to producing this information if it is kept in the ordinary 12 course of business.” ECF No. 133 at 15. Relying on NuVasive’s express representation, 13 the Court granted the motion to compel as to RFP 40 as agreed by the parties, thereby 14 ordering NuVasive to produce the financial data by line item that it kept in the ordinary 15 course of business. ECF No. 145 at 16. 16 Interrogatories 3, 4, and 5, in turn, ask for each of the Accused Products, to identify, 17 by month the costs of goods (including the line-by-line items considered in the calculation 18 of the costs of goods) (Interrogatory 3), the net sales (Interrogatory 4), and the net profit 19 before interest, depreciation, and amortization (Interrogatory 5) “for the number of units 20 sold (either alone or in combination with other accessories or products).” ECF No. 177-3 21 at 29–31. NuVasive objected to each interrogatory based on burden and proportionality 22 because the requests sought data in a format other than how it is kept in the ordinary course 23 of business and lacked temporal limits. Id. at 29–30. NuVasive also asserted the requests 24 were vague and ambiguous. Id. NuVasive initially responded generally pursuant to Rule 25 33(d) and later supplemented its response to identify NUVA0011982 or NUVA0011981 26 27 3 The Court considers RFP 40 as previously narrowed and presented to the Court. ECF No. 28 1 (for Interrogatory 5 only), which it contends “includes information concerning the cost of 2 goods . . . net sales . . . and net profit, as defined by NuVasive during its ordinary course 3 of business, for the number of units sold for each of the Accused Products.” ECF No. 177- 4 3 at 29–31. 5 2. 4WEB’s Motion to Compel 6 In the current motion, 4WEB contends NuVasive has failed to comply with the 7 Court’s March 17 Order because it has not produced relevant and responsive financial 8 information in response to RFP 40, including from NuVasive’s SAP financial database, 9 which is used to track financial metrics associated with product sales. ECF No. 177-1 at 6– 10 9; see ECF No. 182-1 ¶ 2. 4WEB also contends NuVasive should be compelled to answer 11 Interrogatories 3–5 and NuVasive’s strategic use of the qualifier “if kept in the ordinary 12 course of business” was a smokescreen to prevent or delay 4WEB from obtaining highly 13 relevant financial data that is critical to its damage model. ECF No. 177-1 at 6. In support 14 of its motion, 4WEB asserts a financial report (Exhibit E) produced by NuVasive 15 demonstrates NuVasive does, in fact, have the data sought by this discovery. Id. at 13. 16 The crux of NuVasive’s objection is it does not keep product-specific financial 17 information “in the ordinary course of business;” therefore, it is not required to create 18 documents under Rule 34 to respond to RFP 40 or “create new financial calculations” to 19 answer Interrogatories 3–5 under Rule 33. ECF No. 182 at 5, 7. NuVasive further disputes 20 it has the functionality necessary to respond to this discovery because “SAP software could 21 not tell you the specific materials, labor, and overhead expenditures of manufacturing a 22 single Modulus implant. Nor could it tell you the marketing expenses attributable to a 23 single product or EBIDA on the product level.” Id. at 11 (citation omitted). According to 24 NuVasive, “the requested data does not exist in NuVasive’s database.” Id. at 12. In support 25 of its opposition, NuVasive filed a declaration from Heather Schultz, an International 26 Assistant Controller in NuVasive, attesting to various purported limitations of the SAP 27 database. ECF No. 182-1. 28 While this motion was pending, the parties separately sought clarification regarding 1 a different portion of the March 17 Order requiring 4WEB to pay the costs of three 2 additional samples of the Accused Products. ECF No. 208. NuVasive sought permission to 3 file a declaration setting forth the actual cost of each Modulus Accused Product. ECF No. 4 208 at 4. On July 16, 2025 (after the parties had briefed this motion), the Court granted 5 NuVasive’s request and ordered NuVasive to provide a declaration signed under penalty 6 of perjury “setting forth the actual cost to NuVasive of producing each sample (individual 7 unit) as well as the total amount for the fifteen samples at issue (three samples of each of 8 the five Accused Products).” ECF No. 215 at 3 ¶ 1. The Court further ordered “[t]he 9 declaration must provide a specific explanation of how NuVasive’s actual costs were 10 calculated including a breakdown of materials, production, and pro rata research and 11 development expenses (if applicable).” Id. 12 On July 22, 2025, NuVasive filed a declaration from Daniel Venter (hereinafter 13 “Venter Declaration”) in which he purports to calculate the “total actual cost for producing 14 and commercializing fifteen samples of the Modulus implants.” ECF No. 219, Venter 15 Decl., ¶ 3.4 The Venter Declaration explains for each product, the total cost per unit is 16 composed of the standard cost and an allocated cost for other expenses associated with 17 each item. Id. ¶¶ 3–4. Globus, NuVasive’s parent company, calculates the standard cost for 18 each manufactured product each year, which includes materials, labor and overhead, and 19 the Venter Declaration identifies the standard cost for all five Accused Products. Id. ¶¶ 4– 20 5. According to the Venter Declaration, neither NuVasive or Globus calculate or track 21 research and development and other operating expenses by product family or product level. 22 Id. ¶ 10. Thus, to calculate the “best estimate” of the allocated cost attributable to each 23 Accused Product (consisting of product development, clinical and regulatory affairs, sales 24 and marketing, and surgeon education expenses), the Venter Declaration relied on a 2023 25

26 27 4 An unredacted version of the declaration is filed under seal at ECF No. 235. The Court does not cite any sealed information in this Order. 28 1 Profit and Loss statement for NuVasive’s US Spine division and the 2023 average sales 2 price for each Accused Product. ECF No. ¶¶ 7, 10.5 3 Notably, NuVasive had not produced either the standard costs for the Accused 4 Products or the 2023 Profit and Loss Statement for NuVasive’s US Spine division to 4WEB 5 in discovery. ECF No. 257 at 5. 4WEB contends the Venter Declaration shows NuVasive 6 has withheld responsive product-specific financial discovery. ECF No. 257 at 2, 6. 7 3. NuVasive Must Produce Documents Responsive to RFP 40 As Written 8 NuVasive’s argument is two-fold: (1) it does not keep product-specific financial data 9 in the ordinary course of business, and (2) Rule 34 does not require NuVasive to create 10 documents or calculations that do not exist. NuVasive is unconvincing on both accounts. 11 NuVasive’s claim it does not keep any product-specific financial information in the 12 ordinary course is belied by its own filings. Exhibit E (filed under seal) contains relevant 13 financial data on the Accused Products (and notably, non-accused products relevant to RFP 14 63) spanning the date of commercialization through the first fiscal quarter of 2022. ECF 15 No. 186-3. The report contains data regarding cost of goods sold, SG&A, depreciation, and 16 research and development expenses. See id. What’s more, the Venter Declaration confirms 17 the standard cost including materials, labor, and overhead is calculated annually for its 18 manufactured products, and this product-specific financial information is determined by a 19 database maintained by NuVasive. ECF Nos. 219 ¶ 4, 182-1 ¶ 6. As the standard cost 20 calculations exist and are calculated for all manufactured products annually irrespective of 21 this litigation, there is no justifiable reason why NuVasive did not produce this information 22 for the Accused Products in response to the Court’s March 17 Order. Even assuming 23 NuVasive does not track certain allocated costs (e.g., research and development or 24 25 26 5 4WEB has objected to the Venter Declaration as, inter alia, unsubstantiated, unreliable, 27 and inaccurate. ECF No. 225. While the Court notes the pending objection, it need not and does not reach the substance of 4WEB’s objection for purposes of resolving this motion to 28 1 operating expenses) by product family or product level as the Venter Declaration 2 represents, it does not render the standard cost information any less relevant or responsive. 3 NuVasive also cannot dispute the Profit and Loss Statement for NuVasive’s US 4 Spine Division is relevant and responsive to RFP 40, as NuVasive relied on this 5 information to calculate the actual cost of producing and commercializing each Accused 6 Product. See ECF No. 219. If NuVasive requires this information to support its own 7 calculations of costs of the Accused Products for its benefit (to maximize payment by 8 4WEB), it cannot withhold this same information from 4WEB, as it is plainly relevant and 9 responsive to discovery regarding product-level costs of the Accused Products. Further, 10 there are no persuasive burden or proportionality arguments as to these documents, as the 11 information already exists and is readily available to NuVasive—indeed, NuVasive has 12 accessed and used it recently in this litigation. ECF No. 219. 13 NuVasive also misunderstands the law. As explained above, Rule 34(b)(2)(E) sets 14 forth a procedure in which a party can elect to produce documents as they are “kept in the 15 usual course of business” as opposed to organizing and labelling them to correspond with 16 categories in the request. Fed. R. Civ. P. 34(b)(2)(E)(i). Similarly, Rule 34 requires a party 17 to produce ESI in a form “in which it is ordinarily maintained or in a reasonably usable 18 form[.]” Fed. R. Civ. P. 34(b)(2)(E)(ii). Neither requirement serves to limit the scope of a 19 party’s obligation to produce all responsive documents and information in its “possession, 20 custody, or control.” Fed. R. Civ. P. 34(a)(1). 21 NuVasive cites numerous cases for the unremarkable proposition a party is not 22 required to create a completely new document simply to respond to a document request 23 under Rule 34. While generally true, “that is not the same as requiring a party to query an 24 existing dynamic database for relevant information.” Apple Inc. v. Samsung Elecs. Co., No. 25 12-cv-0630-LHK-PSG, 2013 WL 4426512, at *3 (N.D. Cal. Aug. 14, 2013) (citation 26 omitted). “Courts regularly require parties to produce reports from dynamic databases, 27 holding that the technical burden . . . of creating a new dataset for the instant litigation does 28 not excuse production.” Id. (citation modified); see also Mervyn v. Atlas Van Lines, Inc., 1 No. 13-cv-3587, 2015 WL 12826474, at *5–6 (N.D. Ill. Oct. 23, 2015) (“[R]equiring a 2 party to query an existing database to produce reports for opposing parties is not the same 3 as requiring the creation of a new document.”). The Court finds Apple highly instructive 4 on this point, as it involved similar requests for product-specific financial data for accused 5 products. See Apple, 2013 WL 4426512, at *1–4. Like the defendant in Apple, NuVasive 6 does have financial databases it could query to generate at least some of the reports or 7 information sought by 4WEB. Though NuVasive contends it would be “senseless” to 8 require production of more granular data (like in Apple), the Court disagrees. Production 9 of relevant discovery is rarely “senseless,” and NuVasive underscored the benefit and 10 importance of this “granular” data when it used such data (e.g., standard cost calculations) 11 for its own ends. Upon considering the relevance and proportionality factors, the Court 12 finds the benefit of the discovery significantly outweighs and the alleged burden or expense 13 to NuVasive. See Mervyn, 2015 WL 12826474, at *6. Accordingly, NuVasive must query 14 the financial databases in its possession, custody, or control to generate and produce all 15 available information it has responsive to RFP 40. 16 The Court pauses here to note the significant discrepancies between NuVasive’s 17 representations in its opposition and the Venter Declaration. NuVasive represents “SAP 18 software could not tell you the specific materials, labor, and overhead expenditures of 19 manufacturing a single Modulus implant” and even goes so far as to represent “the 20 requested data does not exist in NuVasive’s database.” ECF No. 182 at 11, 12. Yet, the 21 Venter Declaration confirms NuVasive can, and in fact already does, calculate the standard 22 cost associated for its manufactured products annually, including the Accused Products. 23 ECF No. 219 ¶ 4. This number “includes materials, labor, and overhead” and seems 24 undoubtedly responsive to 4WEB’s requests. Id. Even if the discrepancies between the 25 opposition and the Venter Declaration can somehow be reconciled via minute distinction 26 (for example, by NuVasive’s myopic focus on the “SAP database” even though RFP 40 is 27 not so limited), the Court does not view NuVasive’s legal strategizing in a positive light. 28 What NuVasive views as creatively splitting hairs is, in fact, misrepresentation and 1 omission that seems calculated to mislead 4WEB and the Court. In a similar vein, nowhere 2 does NuVasive represent data regarding the historic standard cost information is not 3 available (i.e., in NuVasive’s possession, custody, or control), yet the Schultz Declaration 4 is oddly specific in claiming “NuVasive employees” are unable to pull such information. 5 ECF No. 182-1 ¶ 6. Such evasive litigation tactics serve to prolong discovery and draw out 6 disputes by requiring multiple motions and court intervention on the same discovery 7 request, thereby undoubtedly increasing costs for all. 8 Because the record demonstrates NuVasive has possession, custody, or control of 9 relevant data and information responsive to RFP 40, the Court GRANTS 4WEB’s motion 10 to compel. NuVasive shall produce all information and documents in its possession, 11 custody, or control that are responsive to RFP 40 as written by the deadline set forth below. 12 NuVasive must query the financial database(s) in its possession, custody, or control to 13 generate and produce all available information it has responsive to RFP 40. 14 The Court expressly DEFERS ruling on 4WEB’s request for access to the financial 15 databases until this production has occurred. 16 4. NuVasive Must Answer Interrogatories 3–5 17 NuVasive objects to Interrogatories 3–5 for the same reason it objects to RFP 40. 18 ECF No. 182 at 13. NuVasive’s argument fails for the same reasons discussed above. 19 NuVasive also argues requiring it to calculate the (i) costs of goods on a line-by-line 20 basis for each Modulus implant sold (Interrogatory 3); (ii) net sales for all Modulus 21 products sold (Interrogatory 4); and (iii) net profit before interest, depreciation, and 22 amortization for all Modulus products sold (Interrogatory 5) goes beyond the scope of Rule 23 33, as “[n]othing in Rule 33 requires a party to answer an interrogatory by conducting a 24 financial calculation.” ECF No. 182 at 13. 25 As a preliminary matter, the Court finds NuVasive’s invocation of Rule 33(d) is 26 improper. See ECF No. 177-3 at 29–31. While Rule 33(d) provides an option to produce 27 business records in lieu of a narrative answer, it is only available “[i]f the answer to an 28 interrogatory may be determined by examining [or] compiling. . . a party’s business records 1 (including electronically stored information), and if the burden of deriving or ascertaining 2 the answer will be substantially the same for either party[.]” Fed. R. Civ. P. 33(d). 3 Importantly, the identified documents must contain all the information to actually answer 4 the interrogatories. Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. 02-cv- 5 2258-B-AJB, 2006 WL 8455347, at *3 (S.D. Cal. Oct. 16, 2006). Here, there is no dispute 6 the data identified by NuVasive’s supplemental response under Rule 33(d) did not actually 7 answer Interrogatories 3–5. 8 NuVasive’s assertion it cannot be required to create or compile data to answer to an 9 interrogatory is incorrect. “Interrogatories ask questions. The recipient of the interrogatory 10 must prepare a written answer. That necessarily requires creating a document.” United 11 States v. Dish Network, LLC, No. 09-cv-3073, 2011 WL 98951, at *4 (C.D. Ill. Jan. 10, 12 2011). In addition, “the fact that a litigant does not, in the ordinary course of its operations, 13 compile data in a fashion that would serve as a ready-made answer to an interrogatory does 14 not excuse it from answering.” Johnson v. Cmty. Corr. of Marion Cnty., No. 16-cv-2738- 15 RLY-DML, 2018 WL 11468386, at *1 (S.D. Ind. Aug. 28, 2018). 16 Rather, Rule 33 provides interrogatories must be answered “separately and fully in 17 writing under oath.” Fed. R. Civ. P. 33(b)(3). Where, as here, the party is a corporation, it 18 “must furnish the information available to the party.” Fed. R. Civ. P. 33(b)(1)(B). Thus, a 19 party answering an interrogatory “has an affirmative duty to furnish any and all information 20 available to the party.” Bryant v. Armstrong, 285 F.R.D. 596, 612 (S.D. Cal. 2012) (citation 21 omitted). “If a responding party is unable to provide the requested information, he may not 22 simply refuse to answer.” Id. Instead, the party answering must “state under oath that he is 23 unable to provide the information and must describe the efforts he used to obtain the 24 information.” Id.; see also Dish Network, 2011 WL 98951, at *4 (“If the Interrogatory asks 25 for information that Dish does not have available to it, Dish may so answer; but it must 26 answer. The process of answering may require compiling available information.”). 27 Here, the record demonstrates NuVasive maintains data and information that would 28 enable it to compile answers to 4WEB’s interrogatories (or part thereof). NuVasive does 1 not dispute the relevance of the requests, and the Court finds all three interrogatories seek 2 information relevant to 4WEB’s damages theory. Further, NuVasive has not established a 3 burden of providing available information, and NuVasive’s ability to provide product- 4 specific calculations for the Accused Products in the Venter Declaration supports the 5 proportionality of the request. Furthermore, the Court finds other proportionality factors 6 such as the amount in controversy, NuVasive’s exclusive access to this information, the 7 parties’ responses, as well as the benefit and importance of this discovery to 4WEB 8 outweigh the claimed burden or expense to NuVasive. Accordingly, the Court finds 9 Interrogatories 3–5 are relevant and proportional to the needs of the case. 10 Therefore, the Court GRANTS 4WEB’s motion to compel NuVasive to answer 11 Interrogatories 3–5. To the extent NuVasive does not provide a complete answer, it must 12 support a qualified or partial answer with a declaration from a qualified individual attesting 13 to the efforts it took to locate such data and why such data is unavailable. 14 5. NuVasive was Not Substantially Justified; Fees are Warranted 15 Rule 37(a)(5) provides if the court grants a motion to compel discovery, it “must” 16 order the non-moving party to pay the moving party’s “reasonable expenses incurred in 17 making the motion” after giving an opportunity to be heard. Fed. R. Civ. P. 37(a)(5)(A). 18 Rule 37(a)(5) recognizes various exceptions including where the court finds the moving 19 party failed to meet and confer, the nonmoving party’s objection was substantially justified, 20 or an award of expenses would be unjust. Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii). Here, 4WEB 21 affirmatively seeks fees in connection with its motion to compel RFP 40 and Interrogatories 22 3–5 only. ECF No. 177 at 14. NuVasive opposes, asserting it was substantially justified in 23 declining to supplement RFP 40 and Interrogatories 3–5. ECF No. 182 at 16. 24 “A request for discovery is ‘substantially justified’ under Rule 37 if reasonable 25 people could differ on the matter in dispute.” Blair v. CBE Grp., Inc., No. 13-cv-134- 26 MMA-WVG, 2014 WL 4658731, at *1 (S.D. Cal. Sept. 17, 2014) (citation omitted). In the 27 context of Rule 37 fee awards, the burden of showing substantial justification is on the non- 28 1 moving party. See Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994), as amended 2 (July 25, 1994). 3 NuVasive contends “[b]ecause the requested financial information does not exist in 4 NuVasive’s financial database, NuVasive reasonably believed it was not required to create 5 it.” ECF No. 182 at 16. However, the record before the Court establishes NuVasive does 6 have financial databases it could query to generate at least some of the requested financial 7 information. See, e.g., ECF No. 186-3. In addition, the Court granted the motion to compel 8 as to RFP 40 in its March 17 Order based on NuVasive’s representation it had “no objection 9 to producing this information if it is kept in the ordinary course of business,” ECF No. 133 10 at 15, thereby ordering NuVasive to produce financial data by line item that it kept in the 11 ordinary course of business. ECF No. 145 at 16. It is clear from the record—and in 12 particular NuVasive’s own Schultz and Venter Declarations—NuVasive maintains 13 calculations of the standard cost of its Accused Products on an annual basis irrespective of 14 the litigation but failed to produce this information to 4WEB. Further, NuVasive also had 15 not produced the Profit and Loss Statement for NuVasive’s US Spine division, which also 16 has information relevant to the product-specific costs of the Accused Product. There is no 17 substantial justification for NuVasive’s failure to comply with the Court’s Order and its 18 express discovery representations and obligations. 19 Further, the Court finds no other exception applies, and NuVasive has not presented 20 any circumstances that make an award of expenses unjust. To the contrary, NuVasive’s 21 hide-the-ball litigation tactics in discovery and its briefing have prolonged this dispute, 22 requiring additional briefing and a second round of court intervention. For these reasons, 23 the Court finds an award of reasonable expenses is both appropriate and required under 24 Rule 37(a)(5)(A). The Court ORDERS 4WEB to file a supplemental declaration setting 25 forth its reasonable expenses, including attorneys’ fees, associated with preparing and 26 filing this motion as to RFP 40 and Interrogatories 3–5. This includes the time 4WEB spent 27 preparing and filing the motion for leave to file the supplemental reply and the 28 supplemental reply itself. 1 B. RFP 75 2 RFP 75 seeks: 3 Documents sufficient to show the value, costs (fixed and variable), revenue, profits (gross and net), sales price(s), and other financial metrics of or 4 attributable to each NuVasive product sold as part of (i) NuVasive’s X360 5 Surgical Platform; (ii) NuVasive’s C360 Surgical Platform; and (iii) NuVasive’s P360 Surgical Platform, see ECF No. 151, Exs. B-D, by year, or 6 other reporting period, from the date of first sale of the Accused Product to 7 the present.

8 ECF No. 177-3 at 66. NuVasive objected based on relevance, overbreadth, vagueness, 9 burden, and proportionality. Id at 67. NuVasive also incorporated the arguments made in 10 its Opposition to Plaintiffs’ Motion to Compel NuVasive to Answer Plaintiffs’ 11 Interrogatory No. 6 (ECF No. 150) and indicated it would not produce documents. Id. 12 4WEB explains RFP 75 seeks financial data for non-accused products sold on the 13 same platform as the Accused Products that will show why the sale of non-accused 14 products supports a higher reasonable royalty under the sixth Georgia-Pacific factor. 15 4WEB asserts this data is both relevant and proportional. ECF No. 177-1 at 16, 190 at 11. 16 In opposition, NuVasive claims RFP 75 is a “blatant attempt to circumvent the 17 Court’s May 28, 2025 order” as the RFP is duplicative of information sought via 4WEB’s 18 Interrogatory No. 6. ECF No. 182 at 5, 14–15. 19 1. Relevant Background 20 The Court has addressed discovery related to 4WEB’s convoyed sales theory in two 21 prior orders. In its March 17 Order, the Court found RFP 33, which sought agreements 22 related to the Accused Products, did not identify specific products relevant to its convoyed 23 sales theory and was not narrowly tailored. ECF No. 145 at 16–19. While the Court found 24 the RFP was overly broad as written, it expressly noted 4WEB is likely entitled to 25 information about NuVasive’s non-accused products with a more targeted request. Id. at 26 19. 27 The Court’s May 28 Order addressed Interrogatory No. 6, which 4WEB narrowed 28 to seek financial information on a yearly basis regarding twelve categories of accessory 1 products. ECF No. 171 at 2–3. The Court found “4WEB has demonstrated relevancy as to 2 the sixth Georgia-Pacific factor regarding the extent of the effect of the sales of the 3 Accused Products on the promotion and sale of the Accessory Products.” Id at 8. However, 4 in light of NuVasive’s representations that (1) it consigns various tools for customer use 5 only (rather than sale) and (2) it does not keep a database identifying products sold in the 6 same transaction, it appeared production of the invoices was a necessary prerequisite to 7 identifying accessory products sold alongside the Accused Products. ECF No. 171 at 9. 8 The Court therefore ordered NuVasive to produce the invoices for sale of the Accused 9 Products. Id. The Court also found it was not proportional at the time—prior to production 10 of the invoices (and thus, identification of the accessory products)—to require NuVasive 11 to produce the financial information. Id. Notably, the Court explicitly rejected many of the 12 arguments NuVasive asserted in its opposition. Id. at 8–9. 13 NuVasive subsequently completed a “data pull of invoices” and produced invoice 14 data to 4WEB. ECF No. 182 at 15 n.3. 15 2. NuVasive Must Produce Documents Responsive to RFP 75 16 This Court has already recognized data and information regarding convoyed sales is 17 relevant to 4WEB’s damages theory. ECF No. 171 at 7–8, 145 at 19. The Court 18 incorporates it previous discussion regarding convoyed sales theory and now finds 4WEB 19 has shown relevance for purpose of discovery of sales attributable to the Accused Products 20 sold as part of NuVasive’s X360 Surgical Platform, C360 Surgical Platform, and P360 21 Surgical Platform. 22 Neither of NuVasive’s arguments in opposition are persuasive. First, RFP 75 is not 23 an attempt to circumvent the Court’s May 28 Order. The Court ordered production of 24 invoices as a means of identifying accessory products sold alongside the Accused Products 25 because, as discussed below, NuVasive consistently represented that was the only way to 26 do so. See ECF No. 150 at 11; Tr. 43:20–25. The Court did not foreclose 4WEB from 27 seeking financial information once the accessory products were identified—to the contrary, 28 it specifically contemplated that procedure. See ECF No. 171 at 9; see generally Tr 57:24- 1 25 (explaining the initial piece was for NuVasive to produce invoices to 4WEB). Here, 2 NuVasive seeks financial information regarding platforms where the Accused Products are 3 sold alongside other identifiable products to explore its convoyed sales theory. Nothing 4 about RFP 75 offends the Court in that regard. In addition, the Court is not persuaded by 5 NuVasive’s argument RFP 75 is duplicative of RFP 63. As 4WEB explains, RFP 75 6 requests financial data for non-spinal implant products sold alongside the Accused 7 Products (relevant to the sixth Georgia-Pacific factor), while RFP 63 requests financial 8 data for spinal implants that are not the Accused Products based on NuVasive’s broad claim 9 of non-infringing alternatives (relevant to the ninth, twelfth, and thirteenth Georgia-Pacific 10 factors).6 Finally, NuVasive does not address its burden or proportionality objections in its 11 opposition; thus, these objections are waived. See Puckett v. Cnty. of Sacramento, No. 22- 12 cv-0350-KJM-DB, 2024 WL 418187, at *2 (E.D. Cal. Feb. 5, 2024) (recognizing 13 “objections asserted in discovery responses but not raised in briefing on a discovery motion 14 are also waived”) (citation omitted). 15 Finally, for the second time in this Order the Court must pause to address NuVasive’s 16 inaccurate representations that have surfaced in the parties’ briefing on this dispute. The 17 Court issued its May 28 Order in reliance upon NuVasive’s repeated and unambiguous 18 representations it “does not keep a database identifying products sold in the same 19 transaction,” thereby requiring it “to pull and review invoices for each sale of an Accused 20 Product to identify the Accessory Products (if any) sold with the Accused Product.” ECF 21 No. 150 at 11. Throughout oral argument on this issue, counsel continuously represented 22 NuVasive would be required to review a large quantity of physical discovery and produce 23

24 25 6 The Court notes the parties briefed this motion before the Court issued its August 4 Order regarding RFP 63. Nevertheless, the Court has gleaned significant information regarding 26 the financial data available to NuVasive, and therefore the burden (or lack thereof) to 27 NuVasive in providing product-specific information on its manufactured products. Accordingly, as set forth in a separate order, the Court finds it appropriate to amend its 28 1 the invoices themselves. See ECF No. 168 (“Tr.”) at 32:16-18, 41:17–42:5 (“We have to 2 do an eyes on review of the invoices . . .”), 43:15-17 (discussing “turning over the invoice 3 itself”): 43:20-25 (“if 4WEB, . . . is asking for a detailed financial accounting for each [of] 4 the products listed on the invoice, then that’s burdensome. That requires looking at the 5 physical invoice and then going into an electronic database to pull the accounting details.”). 6 Despite these unequivocal representations, NuVasive has now produced “invoice data” that 7 identifies products sold by invoice number. ECF No. 182 at 15 n.3; ECF No. 200-1. As 8 4WEB correctly notes in its reply, the excel spreadsheet provides Modulus-specific 9 invoices by invoice number, listing each Modulus sale and the accessory products sold 10 alongside the Accused Product. ECF No. 190 at 9; see ECF No. 200-1. 4WEB asserts the 11 speed and ease with which NuVasive produced the spreadsheet shows the proportionality 12 analysis in the May 28 Order is no longer applicable. 4WEB further contends the amount 13 in controversy, NuVasive’s exclusive access to the information, and the importance of the 14 discovery weigh in favor of compelling production of RFP 75. The Court agrees. 15 Because RFP 75 seeks discovery that is relevant and proportional to the needs of the 16 case, the Court GRANTS 4WEB’s motion to compel production of documents in response 17 to RFP 75. Thus, the Court “must” award fees, after giving an opportunity to be heard, 18 unless an exception applies. Fed. R. Civ. P. 37(a)(5)(A). Based on this record, the Court 19 believes a fee award is also appropriate and required in connection with RFP 75. As Rule 20 37(a)(5)(A) requires an opportunity to be heard, NuVasive may file a brief addressing an 21 award of fees as to RFP 75 under Rule 37(a)(5) by the deadline set forth below. 22 III. CONCLUSION AND ORDER 23 For the reasons discussed above, the Court GRANTS 4WEB’s motion to compel in 24 its entirety, ECF No. 177, and ORDERS as follows: 25 1. No later than September 12, 2025, NuVasive must supplement its response 26 and produce documents responsive to RFP 40 as follows: 27 Documents sufficient to show the value, costs (fixed and variable), revenue, profits (gross and net), sales price(s), and other financial metrics of or 28 1 attributable to each Accused Product, by month, year, or other reporting period, from the earliest sale date of the first-sold Accused Product to the 2 present, and documents sufficient to show related projections, and documents 3 sufficient to show operating profit for the business segment in which the Accused Products sit within NuVasive. 4

5 The Court further ORDERS NuVasive must query the financial databases in its possession, 6 custody, or control to generate and produce all available information that is responsive to 7 RFP 40. NuVasive must provide a declaration under oath to 4WEB’s counsel at the time 8 of production that identifies, for each report or category of data, both (i) the financial 9 database from which NuVasive obtained the information or report and (ii) the custodian of 10 the database or report. 11 2. The Court expressly DEFERS ruling on 4WEB’s request for access to the 12 financial databases until NuVasive’s production and declaration required above. 13 3. The Court finds Interrogatories 3–5 are relevant and proportional to the needs 14 of the case and therefore GRANTS 4WEB’s motion to compel NuVasive to answer 15 Interrogatories 3–5. NuVasive must answer Interrogatories by September 16, 2025. 16 4. The Court finds RFP 75 seeks discovery that is relevant and proportional to 17 the needs of the case and therefore GRANTS 4WEB’s motion to compel production of 18 documents in response to RFP 75. No later than September 12, 2025, NuVasive must 19 produce: 20 Documents sufficient to show the value, costs (fixed and variable), revenue, profits (gross and net), sales price(s), and other financial metrics of or 21 attributable to each NuVasive product sold as part of (i) NuVasive’s X360 22 Surgical Platform; (ii) NuVasive’s C360 Surgical Platform; and (iii) NuVasive’s P360 Surgical Platform, see ECF No. 151, Exs. B-D, by year, or 23 other reporting period, from the date of first sale of the Accused Product to 24 the present.

25 For the avoidance of any doubt, NuVasive must query all financial databases in its 26 possession, custody, or control for available information and produce documents and 27 reports responsive to RFP 75. 28 / / 1 5. The Court finds NuVasive was not substantially justified in its response and 2 objection to RFP 40 and Interrogatories 3–5 and no other exceptions apply; therefore, an 3 award of reasonable expenses, including attorneys’ fees, to 4WEB is appropriate and 4 required by Rule 37(a)(5)(A). No later than September 5, 2025, the Court ORDERS 5 4WEB to file a supplemental declaration setting for its reasonable expenses, including 6 attorneys’ fees, associated with preparing and filing this motion as to RFP 40 and 7 Interrogatories 3–5. This includes the time 4WEB spent preparing and filing the motion for 8 leave to file the supplemental reply and the supplemental reply itself. Further, as set forth 9 in the paragraph directly below, 4WEB shall also include its reasonable expenses incurred 10 in connection with its motion to compel regarding RFP 75, though such expenses must be 11 separately designated. 12 6. Based on this record, the Court believes a fee award under Rule 37(a)(5) is 13 also appropriate and required in connection with RFP 75. As Rule 37(a)(5)(A) requires an 14 opportunity to be heard, no later than September 9, 2025, NuVasive may file a brief 15 addressing an award of reasonable expenses under Rule 37(a)(5) and respond to 4WEB’s 16 declaration setting forth its amount of expenses, including attorneys’ fees, incurred . 17 7. No later than September 12, 2025, NuVasive must produce the following 18 documents and information to 4WEB related to its calculation of the actual cost of the 19 Accused Products in the Venter Declaration: 20 A. Documents sufficient to show the standard cost for each Accused 21 Product from 2015 to the present. 22 B. All Profit and Loss statements for NuVasive’s US Spine Division from 23 2015 to the present. 24 C. Documents sufficient to show the average sales price (ASP) for each 25 Accused Product from 2015 to the present. 26 D. Any other documents referenced in or relied on to calculate the Accused 27 Products in the Venter Declaration. This includes identifying, by name, 28 any financial databases queried for information. l 8. The Court SETS an in-person discovery hearing for September 17, 2025 at 2 |{10:00 AM in Courtroom 3D. The parties shall jointly file a Status Report two business 3 || days prior to the hearing identifying the status of discovery and any outstanding discovery 4 issues addressed in this motion. 5 IT IS SO ORDERED. 6 Dated: August 28, 2025 WA f, hy Nyy. het 7 HON. MICHELLE M. PETTIT United States Magistrate Judge

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