Hall v. Marriott International, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TODD HALL, et al., individually and on Case No.: 19-cv-01715-JLS-AHG behalf of all others similarly situated, 12 ORDER OVERRULING Plaintiffs, 13 DEFENDANT’S OBJECTION TO v. MAGISTRATE JUDGE’S ORDER 14 RESOLVING JOINT MOTION FOR MARRIOTT INTERNATIONAL, INC., 15 DETERMINATION OF DISCOVERY Defendant. DISPUTE 16

17 [ECF No. 107]

18 19 Presently before the Court is Defendant Marriott International, Inc.’s Objection to 20 Magistrate Judge Goddard’s Order Resolving Joint Motion for Determination of Discovery 21 Dispute (“Objection”) (ECF No. 107). For the reasons set forth below, Defendant’s 22 Objection is OVERRULED. 23 BACKGROUND 24 I. Allegations in the TAC 25 In this putative consumer class action, Plaintiffs allege that Defendant engages in 26 false and deceptive advertising in the way it represents the prices for its hotel rooms, 27 services, and amenities and assert causes of action on behalf of a putative class for: 28 (1) violations of the Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750 1 et seq.; (2) violations of the False Advertising Law (“FAL”), Cal. Bus. & Prof. Code 2 §§ 17500 et seq.; (3) violations of the Unfair Competition Law (“UCL”), Cal. Bus. & Prof. 3 Code §§ 17200 et seq.; (4) unjust enrichment/quasi contract; (5) negligent 4 misrepresentation; (6) concealment/non-disclosure; and (7) intentional misrepresentation. 5 (ECF No. 82 ¶¶ 103–67.) The factual allegations in Plaintiffs’ Third Amended Class 6 Action Complaint (“TAC”) relevant to the Court’s resolution of the instant matter are 7 summarized as follows: 8 Defendant is a multinational hospitality company that owns, manages, and 9 franchises at least 189 hotels and resorts worldwide. (Id. ¶¶ 11, 21.) Defendant advertises 10 its available rooms and daily room rates online through its own website and the websites 11 of third-party online travel agencies (“OTAs”), such as Priceline and Expedia. (Id. 12 ¶¶ 6–7.) When a consumer uses Defendant’s website to search for a hotel room by 13 destination and date, the website will list various hotels and rooms with matching 14 availability and provide the consumer with a quoted daily room rate. (Id. ¶ 23.) At this 15 initial stage, the quoted daily room rate for each hotel does not include or mention any 16 additional fees the consumer will be required to pay. (Id. ¶ 24.) Once a consumer selects 17 a particular hotel, Defendant’s website directs the consumer to another webpage that lists 18 the available rooms at that hotel, along with the daily rates for those rooms, in large, bold 19 font. (Id. ¶ 25.) This webpage also displays a light blue box at the top of the page with 20 small, blue, bold font that states that a “daily destination amenity fee will be added to the 21 room rate,” followed by the hours for the property’s concierge lounge—apparently linking 22 the destination amenity fee to use of the concierge lounge. (Id.) 23 Once the consumer selects a specific room from the selected hotel, Defendant’s 24 website brings the consumer to another webpage titled “Review Reservation Details.” (Id. 25 ¶ 27.) This webpage displays a picture of the room; the details of the reservation, such as 26 the reservation date, number of rooms, and guests per room; the quoted daily room rate; 27 and additional “USD Taxes and fees” to be charged. (Id.) There are also two drop-down 28 menus at the bottom of this webpage, one titled “Choose Room Features” and the other 1 titled “Summary of Charges.” (Id.) If the consumer clicks the Summary of Charges drop- 2 down menu, a breakdown of what charges are included in the “USD Taxes and fees” charge 3 appears: the “destination amenity fee” and “estimated government taxes and fees.” (Id. 4 ¶ 29.) By combining the amenity fee with tax payments in a generic heading of “USD 5 Taxes and fees,” Defendant misleads the consumer into believing the amenity fees are 6 government-imposed charges. (Id. ¶ 27.) Also included in the Summary of Charges 7 breakdown in smaller, lighter-colored font is a list of “Additional Charges,” including rates 8 for on-site and valet parking. (Id. ¶ 29.) Defendant does not inform the consumer what is 9 included in either the destination amenity fee (e.g., wifi, use of the concierge lounge, use 10 of the business center, etc.) or the government taxes and fees. (Id.) 11 Defendant further misleads consumers with inconsistent representations on its 12 website regarding what amenities are covered by the amenity fee or are offered 13 complimentary. (See id. ¶¶ 37–38.) For example, Defendant’s website may indicate for a 14 particular hotel that the amenity fee “includes high speed Internet/resort equipment 15 rentals/fitness classes and more.” (Id. ¶ 37.) However, Defendant’s website may 16 simultaneously advertise that fitness classes are “complimentary” and that the fitness center 17 is “free of charge for hotel guests.” (Id. ¶ 38.) 18 As with its own website, Defendant fails to include resort and/or amenity fees in the 19 quoted room rates advertised by OTAs. (See id. ¶ 40.) When a consumer searches for a 20 hotel room using the reservation system on Expedia, for example, the consumer receives a 21 quoted room rate that does not include or mention any resort or amenity fee. (Id.) When 22 the consumer clicks “Select your room” under the quoted daily room rate on Expedia’s 23 webpage, the consumer is directed to another webpage that again quotes the same rate 24 without inclusion or mention of a resort or amenity fee. (Id. ¶ 41.) If the consumer again 25 selects the quoted room rate, the consumer is directed to another webpage that displays a 26 “price summary.” (Id. ¶ 42.) This price summary includes: the quoted room rate; 27 additional “Taxes and Fees”; a notice stating, “Mandatory property fee: Collected by 28 property” with a link to “Details”; and a “Trip Total.” (Id.) Only by clicking on Details 1 does the consumer learn that he or she will be charged a “Resort fee” and what this fee 2 claims to include: beach loungers, fitness/yoga classes, sporting facilities and equipment, 3 internet access, and “[a]dditional inclusions.” (Id. ¶ 44.) Defendant, however, 4 simultaneously advertises on Expedia that consumers are afforded “Free Wifi” and 5 complimentary fitness classes and equipment. (Id. ¶ 45.) Further, the consumer cannot 6 discern whether they will be charged the Resort fee upon arrival at the hotel or whether the 7 Resort fee is already included in the “Trip Total.” (Id. ¶¶ 46; 50.) 8 Defendant also deceives consumers on OTA websites by misusing former price 9 comparisons. (Id. ¶ 51.) For example, Defendant may advertise a room rate on an OTA’s 10 website by putting a lower rate in large, bold font (the “bargain” rate or “bait” price) next 11 to a higher room rate in smaller, strikethrough font. (Id. ¶ 52.) Then, later in the vending 12 process, Defendant increases the bargain/bait price to include additional fees/taxes, 13 bringing the total room rate back up to the originally-advertised strikethrough price. (See 14 id.) 15 On October 16, 2017, Plaintiff Kevin Branca (“Plaintiff”) booked a room at the 16 Marriott Ritz-Carlton Kapalua Resort from Costco’s Travel website. (Id. ¶ 66.) 17 Subsequently in December 2020, Plaintiff discovered that Defendant had “misleadingly 18 advertised the hotel room rates and charges” he paid to stay at Defendant’s hotel “by hiding 19 and burying the resort and amenity fees, disguising them as ‘USD Taxes and fees’, 20 advertising discounted room rates which were based on falsely advertised bargain rates, 21 and switching the pricing from the advertised room rate to a different total payment for his 22 trip.” (Id. ¶ 67.) For example, Defendant charged Plaintiff a $35 “resort fee” per night for 23 his stay in Kapalua that he was unaware of when he booked his hotel. (Id.) Plaintiff “was 24 deceived” by Defendant’s practices and “relied upon Defendant’s misleading bargain and 25 bait advertising, and specifically the hidden and deceptive nature of the resort fees charged 26 to consumers.” (Id. ¶ 68.) 27 /// 28 /// 1 II. Procedural Background of the Instant Discovery Dispute 2 On June 4, 2021, Plaintiff served amended objections and responses to Defendant’s 3 first set of discovery requests. (ECF No. 101 at 109.) On June 24, 2021, the parties brought 4 a dispute to Magistrate Judge Goddard pursuant to her Chambers Rules concerning 5 Defendant’s Request for Production (“RFP”) No. 16, which seeks: 6 All documents dated January 1, 2012 to December 31, 2017 7 relating to any purchase by [Plaintiff] or someone acting on his behalf and/or at his direction of any product or service for which 8 he was charged and paid a mandatory fee, including but not 9 limited to fees associated with hotels, airline tickets, sporting event tickets, and concert tickets.1 10

11 (Id. at 6.) After conducting a telephonic discovery conference (ECF No. 94), Judge 12 Goddard issued a briefing schedule (ECF No. 95), and the parties filed a Joint Motion for 13 Determination of Discovery Dispute (“Joint Motion”) (ECF No. 101) on July 15, 2021. 14 On August 5, 2021, Judge Goddard issued an order resolving the Joint Motion and 15 denying Defendant’s request to compel Plaintiff to produce documents in response to RFP 16 No. 16. (ECF No. 106.) In her order, Judge Goddard made the following findings: 17 Though the information sought is not relevant to 18 Plaintiff’s claims, the Court finds that it is relevant to Plaintiff’s credibility. The Court agrees with Defendant that evidence that 19 Plaintiff “made dozens of online purchases involving partition 20 pricing before making the subject Marriott reservation” could negatively impact his credibility, since it would be “far less likely 21 that the partition pricing on Costco’s website [] deceived him 22 because he would have been well familiar with the concept of an advertised price not being the total price.” However, the Court 23 finds that RFP No. 16 is overbroad. Plaintiff’s prior hotel 24 accommodation purchases are relevant, but the fee structures and 25

26 1 RFP No. 16 originally sought documents from January 1, 2010, to the present, but 27 Defendant agreed to narrow its request to the six-year period of January 1, 2012, to 28 December 31, 2017. (ECF No. 101 at 3, 145.) 1 disclosure, as well as purchasing models, for airline tickets, sporting event tickets, and concert tickets are distinguishable 2 from the hotel reservations at issue in this case. Though the 3 Court finds the hotel accommodation aspect of RFP No. 16 relevant, the Court declines to grant Defendant’s motion to 4 compel. In RFP No. 9, Defendant requested “[a]ll documents 5 constituting or relating to reservations at a non-Marriott Hotel charging a Resort Fee made by [Plaintiff] or on his behalf and/or 6 his direction.” Thus, ordering production of “[a]ll documents 7 relating to any purchase by [Plaintiff] or someone acting on his behalf and/or at his direction of any product or service 8 [associated with hotels] for which he was charged and paid a 9 mandatory fee”—RFP No. 16—would be duplicative. 10 (Id. at 9–10.) 11 Defendant filed the instant Objection to Judge Goddard’s August 5, 2021 Order on 12 August 19, 2021. (ECF No. 107.) 13 LEGAL STANDARD 14 A party may object to a non-dispositive pretrial order of a magistrate judge within 15 fourteen days after service of the order. Fed. R. Civ. P. 72(a). In reviewing a magistrate 16 judge’s decision, the district court’s function “is not to decide what decision [it] would 17 have reached on its own, nor to determine what is the best possible result considering all 18 available evidence.” Allen v. Beard, Case No.: 3:16-cv-2713-MMA-KSC, 2018 WL 19 5819782, at *1 (S.D. Cal. Nov. 7, 2018) (quoting Bare Escentuals Beauty, Inc. v. Costco 20 Wholesale Corp., No. 07CV90, 2007 WL 4357672, at *2 (S.D. Cal. Dec. 11, 2007)). 21 Rather, the district court’s function “is to decide whether the magistrate judge, based on 22 the evidence and information before [her], rendered a decision that was clearly erroneous 23 or contrary to law.” Id.; accord 28 U.S.C. § 636(b)(1)(A); see also Obesity Rsch. Inst., 24 LLC v. Fiber Rsch. Int’l, LLC, Case No. 15-cv-595-BAS (MDD), 2017 WL 3335736, at 25 *1 (S.D. Cal. Aug. 4, 2017) (“The ‘clearly erroneous’ standard applies to factual findings 26 and discretionary decisions made in connection with non-dispositive pretrial discovery 27 matters.” (quoting F.D.I.C. v. Fid. & Deposit Co. of Md., 196 F.R.D. 375, 378 (S.D. Cal. 28 2000))). 1 Under Rule 72(a), “[a] finding is clearly erroneous when, although there is evidence 2 to support it, the reviewing court on the entire evidence is left with the definite and firm 3 conviction that a mistake has been committed.” Bare Escentuals Beauty, Inc., 2007 WL 4 4357672, at *2 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “An 5 order is contrary to law when it fails to apply or misapplies relevant statutes, case law[,] or 6 rules of procedure.” Williams v. County of San Diego, Case No.: 17cv815-MMA (JLB), 7 2018 WL 6716630, at *3 (S.D. Cal. Dec. 21, 2018) (quoting Waterfall Homeowners Ass’n 8 v. Viega, Inc., 283 F.R.D. 571, 575 (D. Nev. 2012)). 9 DISCUSSION 10 I. Parties’ Arguments 11 Defendant objects to Judge Goddard’s order on relevancy grounds, arguing that RFP 12 No. 16 seeks relevant information because Plaintiff’s “familiarity with partition pricing” 13 in general is relevant to whether he was deceived by Defendant’s pricing disclosures, and 14 in turn, whether Plaintiff was deceived by Defendant’s pricing disclosures is relevant to 15 whether Plaintiff has standing. (See ECF No. 107 at 5–7.) Defendant maintains that Judge 16 Goddard’s “finding that RFP No. 16 is irrelevant to [Plaintiff]’s claims is contrary to law,” 17 because to have standing under the CLRA, FAL, and UCL, a plaintiff “must meet an 18 economic injury-in-fact requirement.” (Id. at 5 (quoting Reid v. Johnson & Johnson, 780 19 F.3d 952, 958 (9th Cir. 2015)).) Citing to a case from this District, Defendant argues that 20 to meet this injury-in-fact requirement, a plaintiff “must allege” not only that he “suffered 21 an economic injury,” but “that he actually relied on the [defendant’s] purported 22 misrepresentation.” (Id. at 5–6 (quoting Branca v. Nordstrom, Inc., No. 14cv2062–MMA 23 (JMA), 2015 WL 1841231, at * 3 (S.D. Cal. Mar. 19, 2015)).) Defendant reasons that 24 Plaintiff’s familiarity with partition pricing in general—the information RFP No. 16 25 purportedly aims to discover—is relevant to this second standing requirement: whether 26 Plaintiff “actually relied” on Defendant’s pricing disclosures. (See id. at 5–6.) It is 27 Defendant’s position that “[i]f the evidence shows that [Plaintiff] made dozens of online 28 purchases involving partition pricing before making the subject Marriot reservation, it 1 makes it far less likely that he relied on Marriott’s initial advertising of the room rate in 2 purchasing his hotel room.” (Id. at 6.) 3 Plaintiff opposes Defendant’s Objection, arguing that Defendant “fails to explain 4 how documents relating to [his] various ticket purchases” from non-hotel industries are 5 relevant “to whether [he] was deceived by [Defendant]’s pricing disclosures.” (ECF No. 6 111 at 5.) Plaintiff takes issue with Defendant’s characterization of the case and maintains 7 that the “case is not about partition pricing in general,” but “whether the representations 8 and omissions on Marriott’s website and the OTA websites are misleading to a reasonable 9 consumer.” (Id.) Plaintiff further argues that his allegations regarding Defendant’s 10 misrepresentations are not based solely on Defendant’s use of partition pricing; Plaintiff 11 also “alleges that consumers are unable to determine what services they are being charged 12 for through the resort fee, as [Defendant] advertises some amenities as both being 13 complimentary and a part of the resort fee.” (Id. at 6.) 14 In reply, Defendant reasserts its standing argument and maintains that Judge 15 Goddard “mistakenly found that ‘[w]hether [Branca] himself was deceived . . . is not at 16 issue’” because whether Defendant’s practices deceived Plaintiff “is squarely relevant to 17 his standing to sue.” (ECF No. 112 at 2 (alterations in original).) Defendant further takes 18 aim at Judge Goddard’s determination regarding the relevance of Plaintiff’s familiarity 19 with partition pricing in general, contending that she “failed to make any meaningful 20 comparison between [its] pricing practices and the pricing practices used in other 21 industries.” (Id. at 5.) 22 II. Analysis 23 As an initial matter, Defendant appears to be using this review process to raise a new 24 argument that it did not raise to Judge Goddard. In the Joint Motion, Defendant framed its 25 argument concerning the relevancy of RFP No. 16 solely based on Plaintiff’s credibility 26 before a jury, stating: 27 /// 28 /// 1 [Plaintiff] argues that, when reserving a Marriott hotel on Costco’s travel website, [Defendant] deceived consumers by 2 advertising hotels at less than full price, i.e., advertising them 3 without the applicable resort fees, and [Plaintiff] believed that the advertised room rate was the total price. For a jury to credit 4 that alleged belief by [Plaintiff] . . . a jury likely would have to 5 find that [Plaintiff] never had encountered partition pricing, and thus the notion of a website advertising a base rate and then later 6 adding charges before a purchase is made was entirely foreign to 7 him. That is why [Defendant] seeks to discover [Plaintiff]’s past experience with partition pricing. If the evidence shows that 8 [Plaintiff] made dozens of online purchases involving partition 9 pricing before making the subject Marriott reservation, it makes it far less likely that the partition pricing on Costco’s website 10 allegedly deceived him because he would have been well 11 familiar with the concept of an advertised price not being the total price. 12 13 (ECF No. 101 at 4–5 (emphasis added).) Despite failing to bring any argument concerning 14 RFP No. 16’s relevance to issues of standing in the Joint Motion, Defendant now posits 15 that Judge Goddard “improperly disregarded case law”—that Defendant did not cite to in 16 the Joint Motion—that requires Plaintiff to allege2 actual reliance on Defendant’s purported 17 misrepresentations to have standing. (ECF No. 107 at 5 (quoting Branca, 2015 WL 18 1841231, at *3).) An objection, however, “is not the place . . . to make a new argument . . 19 . not addressed in [Defendant’s] original brief.” In re Outlaw Lab’ys LP Litig., No. 18- 20 CV-840-GPC-BGS, 2021 WL 84474, at *3 (S.D. Cal. Jan. 11, 2021); accord Sundby v. 21 Marquee Funding Grp., Inc., Case No.: 19-cv-00390-GPC-AHG, 2020 WL 4015694, at 22 *4 (S.D. Cal. July 16, 2020); see also Chappell v. Dickerson, No. 1:96-CV-5576-AWI, 23 2007 WL 1725683, at *2 (E.D. Cal. Jun. 14, 2007) (“[A]llowing parties to litigate fully 24 their case before the magistrate [judge] and, if unsuccessful, to change their strategy and 25

26 2 The Court notes that Defendant cites to case law for the standard a plaintiff must 27 meet to establish standing in a complaint, and the Court has already determined that 28 Plaintiffs have adequately alleged standing. (See ECF No. 31 at 16–18.) 1 present a different theory to the district court would frustrate the purpose of the Magistrates 2 Act.”). Because Defendant did not raise its standing argument to Judge Goddard, the Court 3 “need not consider it.” Beavers-Gabriel v. Medtronic, Inc., Civil No. 13–00686 JMS–RLP, 4 2015 WL 3397859, at *4 (D. Haw. May 26, 2015) (finding an argument raised for the first 5 time in an objection to the magistrate judge’s order on a motion to compel waived); accord 6 Baker v. Wehinger, Case No.: CV 18-05800 SJO (Ex), 2019 WL 6720990, at *7 (C.D. Cal. 7 Mar. 20, 2019) (same); see also Seven For All Mankind, LLC v. GenX Clothing, Inc., No. 8 CV 05-5563-GAF (RZx), 2006 WL 5720346, *3 (C.D. Cal. 2006) (“The district judge will 9 normally not consider arguments, case law, or evidentiary material [that] could have been, 10 but w[ere] not, presented to the magistrate judge in the first instance.”). 11 Nevertheless, because Defendant based its credibility argument on the same theory 12 that it now bases its standing argument—that Plaintiff’s familiarity with partition pricing 13 in general, regardless of the industry, is relevant to whether he was deceived by or actually 14 relied on Defendant’s pricing disclosures—the Court will address this aspect of 15 Defendant’s Objection. In her order, Judge Goddard disagreed with Defendant’s theory, 16 finding that “the fee structures and disclosure[s], as well as purchasing models” for other 17 industries, such as those identified by RFP No. 16, are “distinguishable from the hotel 18 reservations at issue in this case,” and therefore irrelevant. (ECF No. 106 at 10.) This 19 determination was not clearly erroneous. 20 First, as Judge Goddard found, Defendant has not met its burden to show that 21 Plaintiff’s familiarity or experience with partition pricing in other industries is probative of 22 whether he actually relied on or was deceived by Defendant’s use of partition pricing. See 23 Starkey v. Hernandez, Case No.: 3:17-cv-01158-JLS-KSC, 2018 WL 6075809, at *2 (S.D. 24 Cal. Nov. 21, 2018) (“[T]he moving party . . . has the burden of informing the Court why 25 the information [it] seeks is relevant and proportional to the needs of the case . . . .”). 26 Defendant’s position that “the crux of this case is about whether partition pricing— 27 irrespective of the form it takes—is or is not deceptive” (ECF No. 107 at 7) is rebutted by 28 Plaintiff’s detailed allegations in the TAC of how Defendant allegedly deceives consumers 1 with partition pricing on its website or on the websites of OTAs and Plaintiff’s reliance on 2 Defendant’s specific practices. (See ECF No. 82 ¶¶ 16–53.) Although Plaintiff may be 3 familiar with the concept of partition pricing generally from exposure to the practice in, for 4 example, the music, airline, or sporting industries, whether or not Plaintiff was deceived 5 by Defendant’s practices may be highly dependent on the manner in which Defendant uses 6 partition pricing. Defendant acknowledges in its Objection that “not all companies who 7 sell goods and services over the internet use partition pricing in the same way” but draws 8 no comparison between the practices in the other industries it seeks discovery in and those 9 used by Defendant. Defendant posits that Judge Goddard “failed to make any meaningful 10 comparison between [Defendant]’s pricing practices and the pricing practices used in other 11 industries” (ECF No. 112 at 5), but it is Defendant’s burden to show relevance, not the 12 Court’s. Based on the arguments that were before her, Judge Goddard made a relevancy 13 determination in her discretion that is not clearly erroneous. See Williams, 2018 WL 14 6716630, at *3 (“When reviewing discovery disputes . . . the [m]agistrate [judge] is 15 afforded broad discretion, which will be overruled only if abused.” (quoting Columbia 16 Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007))). 17 Moreover, Judge Goddard’s decision to deny Defendant’s motion to compel is 18 further bolstered by Defendant’s failure to show that RFP No. 16 is proportional to the 19 needs of the case. See Starkey, 2018 WL 6075809, at *2. In the TAC, Plaintiff alleges that 20 Defendant’s use of partition pricing is only one of several ways Defendant engages in 21 deceptive advertising practices. As highlighted by Plaintiff in his opposition to the 22 Objection: 23 Plaintiff alleges that Defendant’s advertising of its hotel room 24 rates is deceptive because: (1) Defendant does not include mandatory resort fees in initially advertised room rates; (2) 25 Defendant does not break out the cost of mandatory resort fees 26 when later listing the summary of charges for a hotel room; (3) Defendant includes mandatory resort fees within the broader 27 heading of “taxes and fees,” which leads consumers to believe 28 the resort fees are government-imposed charges; (4) Defendant 1 does not inform consumers on the services included in the resort fee; (5) Defendant falsely states that certain amenities are 2 complimentary when Defendant later describes such amenities 3 as covered by the resort fee; and (6) Defendant provides such pricing information to consumers in an inconsistent manner 4 across different hotels, compounding the confusion. 5 6 (ECF No. 111 at 3.) Even if Defendant had demonstrated that (1) its partition pricing 7 practices are sufficiently analogous to the pricing practices in other industries, and (2) that 8 Plaintiff’s familiarity or experience with purchasing goods or services in those industries 9 is probative of whether he was deceived by Defendant’s practices, partition pricing is only 10 one aspect of this case. And, as noted by Judge Goddard, Defendant has also requested 11 from Plaintiff in RFP No. 9 “[a]ll documents constituting or relating to reservations at a 12 non-Marriott Hotel charging a Resort Fee made by [Plaintiff].” (ECF No. 106 at 10.) 13 Given that Defendant has received, or will receive, at least some information lending to 14 Plaintiff’s experience with partition pricing in the hotel industry, Defendant has not shown 15 that the benefit of RFP No. 16 outweighs Plaintiff’s burden or expense of producing 16 responsive documents, even if Defendant “simply asks [that Plaintiff] apply a few dozen 17 search terms . . . to his email accounts.”3 (ECF No. 101 at 6.) Again, it is Defendant’s 18 burden as the moving party to show proportionality. 19 Finally, the Court notes that RFP No. 16, as written, is overbroad. Defendant argued 20 to Judge Goddard that it drafted RFP No. 16 to discover “the experiences [Plaintiff] had 21

22 3 The Court also notes that Defendant fails to demonstrate how “documents relating 23 to any purchase by [Plaintiff] . . . of any product or service for which he was charged and 24 paid a mandatory fee” would sufficiently show that Plaintiff was subjected to partition pricing in making a purchase, a point emphasized by Plaintiff in the Joint Motion. (See 25 ECF No. 101 at 8 (“[Defendant] makes no mention of how it could feasibly deduce that 26 Plaintiff paid fees on the basis of his accounts statements.”).) To the extent Defendant desires e-mail confirmations for Plaintiff’s purchases, the intricacies of the vending 27 processes Plaintiff experienced when making his purchases would not be evident from the 28 confirmations themselves. 1 || with partition pricing before he made the subject Marriott reservation.”” (ECF No. 107 at 2 ||3.) However, this is not the only information the request captures. RFP No. 16 requests 3 || “[a]ll documents . . . relating to any purchase by [Plaintiff] . . . of any product or service 4 which he was charged and paid a mandatory fee... .” Defendant did not tailor RFP 5 ||No. 16 specifically to Plaintiff's purchases where he was charged a mandatory fee after 6 || first being advertised a lower price, 1.e., Plaintiff's experience with partition pricing. To 7 sure, if the Court compelled Plaintiff to produce all documents responsive to RFP 8 ||No. 16, many—if not most—of the documents Plaintiff would produce may be irrelevant. 9 CONCLUSION 10 Judge Goddard’s resolution of the parties’ dispute with respect to RFP No. 16 was 11 |/not clearly erroneous or contrary to law. Accordingly, Defendant’s Objection (ECF No. 12 || 107) is OVERRULED. 13 IT IS SO ORDERED. 14 ||Dated: November 1, 2021 . tt 15 ja Janis L. Sammartino 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28