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 REQUIRING NUVASIVE 12 v. TO FILE SUPPLEMENTAL RESPONSE TO RFP 67 13 NUVASIVE, INC.,

14 Defendant. [ECF No. 250] 15 16 17 On August 4, 2025, the Court denied 4WEB’s motion to compel as to RFP 67 18 without prejudice and ordered NuVasive to (1) provide a declaration under oath confirming 19 after a diligent search and reasonable inquiry, no documents responsive to RFP 67 exist, 20 and (2) supplement its discovery responses to RFP 67 and Interrogatory 23 as agreed in its 21 opposition. ECF No. 233 at 19. 22 On August 19, 2025, NuVasive filed a declaration of Brian Kearns based on his 23 personal knowledge in which he represents, to the best of his knowledge, he is not aware 24 of any documents responsive to RFP 67. ECF No. 250. 25 The Court finds Mr. Kearns’ declaration falls short of NuVasive’s unequivocal 26 representation that “no documents responsive to RFP 67 exist.” ECF No. 164 at 16. See 27 Blackwell v. Climate Pros, LLC, No. 20-cv-1968-KJM-CKD, 2021 WL 4942875, at *2 28 (E.D. Cal. Oct. 22, 2021) (“The primary purpose of Rule 34(b)(2)’s requirements is to 1 ||eliminate this guesswork—requiring responding parties to clearly state that responsive 2 documents do not exist, have already been produced, or exist but are being withheld based 3 an objection.”) (quotation marks and citation omitted); Rogers v. Giurbino, 288 F.R.D. 4 485 (S.D. Cal. 2012) (“A party must make a reasonable inquiry to determine whether 5 ||responsive documents exist, and if they do not, the party should so state with sufficient 6 || specificity to allow the Court to determine whether the party made a reasonable inquiry 7 ||and exercised due diligence.”) (quotation marks and citation omitted). 8 The Court, however, has not yet reviewed NuVasive’s supplemental discovery 9 ||response. Accordingly, no later than September 2, 2025, the Court ORDERS NuVasive 10 file its supplemental response to RFP 67. 11 IT IS SO ORDERED. 12 Dated: August 29, 2025 “WA vf ly Ny. str 13 HON. MICHELLE M. PETTIT 4 United States Magistrate Judge

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