1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IMPRIMISRX, LLC, Case No.: 21-cv-1305-BAS-DDL
12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANTS’ MOTION TO COMPEL FURTHER 14 OSRX, INC.; OCULAR SCIENCE, INC., RESPONSES TO 15 Defendants. INTERROGATORIES 16 OSRX, INC., and OCULAR SCIENCE, INC., 17 Counterclaimants, 18 v. 19 IMPRIMISRX, LLC, 20 Counterdefendant. 21 22 23 Before the Court is Defendants’ OSRX, Inc. and Ocular Science, Inc.’s 24 (“Defendants”) Motion to Compel Plaintiff ImprimisRx, LLC’s (“Plaintiff”) Further 25 Responses to Defendants’ First Set of Interrogatories (the “Motion”). Having considered 26 the moving papers, the arguments of counsel at the discovery conference, and the discovery 27 at issue, the Court GRANTS IN PART and DENIES IN PART the Motion. 28 / / / 1 I. 2 BACKGROUND 3 On August 25, 2022, the Court held a discovery conference with the parties to 4 address a dispute concerning the completeness of Plaintiff’s responses to Interrogatory No. 5 1, which generally seeks the identification of statements by Defendants that Plaintiff asserts 6 are false. Following the discovery conference, the Court ordered the parties to further meet 7 and confer and to bring a motion to compel if the parties failed to resolve the dispute. Dkt. 8 No. 60. On August 30, 2022, Defendants brought the present Motion. Dkt. No. 61. 9 Plaintiff opposes the Motion. Dkt. No. 63. 10 II. 11 LEGAL STANDARD 12 The purpose of discovery is to “make a trial less a game of blind man’s bluff and 13 more a fair contest with the basic issues and facts disclosed to the fullest practicable 14 extent,” United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (citation 15 omitted), and “to narrow and clarify the basic issues between the parties.” Hickman v. 16 Taylor, 329 U.S. 495, 501 (1947). The Federal Rules of Civil Procedure permit a broad 17 scope of discovery: “Parties may obtain discovery regarding any nonprivileged matter that 18 is relevant to any party’s claim or defense and proportional to the needs of the case . . . .” 19 Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be 20 admissible in evidence to be discoverable.” Id. “Evidence is relevant if: (a) it has any 21 tendency to make a fact more or less probable than it would be without the evidence; and 22 (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. 23 A motion to compel discovery is appropriate when a party fails to answer an 24 interrogatory, where the act of failing to answer includes providing evasive or incomplete 25 responses. Fed. R. Civ. P. 37(a)(3)(B)(iii) and (a)(4). The party seeking to compel 26 discovery bears the burden of establishing that the requested discovery is relevant to a 27 claim or defense, while the party opposing discovery has the burden to show that the 28 discovery should be prohibited, as well as the burden of clarifying, explaining, and 1 supporting its objections. See FlowRider Surf, Ltd. v. Pacific Surf Designs, Inc., No. 15- 2 cv-1879-BEN-BLM, 2016 WL 6522807, at *2 (S.D. Cal. Nov. 3, 2016). 3 III. 4 DISCUSSION 5 A. Timeliness of Defendants’ Motion 6 As a threshold matter, the Court ordered briefing on the issue of the timeliness of 7 Defendants’ Motion under the Chambers Rules of Magistrate Judge Barbara L. Major 8 (“Major Rules”).1 Section V(E) of the Major Rules provides, in relevant part: 9 All discovery motions must be filed within 30 days of the event giving rise to the dispute . . . . For written discovery, the event 10 giving rise to the dispute is the service of the initial response or 11 production of documents, or the passage of the due date without a response or document production. 12 13 (emphasis added.) Thus, the parties were required to bring any discovery motion within 14 30 days of the date upon which Plaintiff served its initial responses to the Interrogatories. 15 Defendants contend the 30-day period began when Plaintiff served its amended 16 responses on July 21, 2022, not its initial responses. See Dkt. No. 61-1 at 3. Additionally, 17 Defendants argue that even if their interpretation of the Major Rules is incorrect, thereby 18 rendering the Motion untimely, good cause exists to consider the Motion because the 19 requested discovery is central to Plaintiff’s claims. Id. at 3-4. Defendants further assert 20 that good cause exists because any delay in bringing the Motion was due to their reliance 21 on Plaintiff’s representations that it would prepare amended responses to resolve the 22 underlying dispute without the need for Court intervention. See id. at 3, n. 3; see also Dkt. 23 No. 61-2 at 3-4. 24 25
26 27 1 Although the case is presently before the undersigned pursuant to an August 18, 2022 transfer order (Dkt. No. 58), the Major Rules govern because the events giving rise 28 1 The Major Rules are clear – the event giving rise to the dispute which triggers the 2 30-day timeline is the date of “service of the initial response.” See Major Rules–Civil 3 Cases § V(E). Plaintiff served its initial responses to the Interrogatories on April 25, 2022, 4 and the 30-day period to raise any discovery disputes ran on May 25, 2022. Accordingly, 5 Defendants’ Motion is untimely. 6 The Court agrees with Defendants that, as a general matter, parties should attempt 7 to resolve discovery disputes on their own before involving the Court. See Dkt. No. 61-1 8 at 3, n. 4. Indeed, the Major Rules require the parties to meet and confer before raising 9 discovery disputes, as do this Court’s Chambers Rules. But the parties may not continually 10 extend the 30-day deadline to raise discovery disputes on their own accord. Rather, where 11 the parties’ meet and confer efforts are ongoing, the appropriate remedy is to seek leave to 12 continue the 30-day deadline to raise discovery disputes with the Court. The parties in this 13 case did just that in April 2022 by jointly moving to continue the deadline for Plaintiff to 14 move to compel with respect to its first set of Requests for Production. See Dkt. No. 25. 15 The parties should have done the same with respect to Defendants’ Interrogatories. 16 Although Defendants’ motion is untimely, the Court will exercise its discretion to 17 consider the Motion on the merits, but the Court will require compliance with its Chambers 18 Rules with respect to any future discovery disputes. 19 B. Plaintiff’s Response to Defendants’ Interrogatory No. 1 20 Defendants’ Interrogatory No. 1 seeks the following information: 21 INTERROGATORY NO. 1: Identify each statement and representation of the Defendants — 22 whether such statement or representation was purportedly made 23 or asserted in the course of the advertising and marketing of the Defendants’ products, or otherwise — that the Plaintiff has relied 24 upon, or intends to rely upon, to support one or more claims 25 asserted in the Complaint. 26 See Dkt. No. 61-2 at 17. In its initial response to Interrogatory No. 1, Plaintiff stated its 27 objections and proceeded to provide 32 individual “statements and types of statements” 28 consisting of direct quotes, descriptive summaries, and video hyperlinks concerning the 1 alleged false statements that Plaintiff alleges Defendants made. See id. at 25-28. In its 2 amended response to Interrogatory No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IMPRIMISRX, LLC, Case No.: 21-cv-1305-BAS-DDL
12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANTS’ MOTION TO COMPEL FURTHER 14 OSRX, INC.; OCULAR SCIENCE, INC., RESPONSES TO 15 Defendants. INTERROGATORIES 16 OSRX, INC., and OCULAR SCIENCE, INC., 17 Counterclaimants, 18 v. 19 IMPRIMISRX, LLC, 20 Counterdefendant. 21 22 23 Before the Court is Defendants’ OSRX, Inc. and Ocular Science, Inc.’s 24 (“Defendants”) Motion to Compel Plaintiff ImprimisRx, LLC’s (“Plaintiff”) Further 25 Responses to Defendants’ First Set of Interrogatories (the “Motion”). Having considered 26 the moving papers, the arguments of counsel at the discovery conference, and the discovery 27 at issue, the Court GRANTS IN PART and DENIES IN PART the Motion. 28 / / / 1 I. 2 BACKGROUND 3 On August 25, 2022, the Court held a discovery conference with the parties to 4 address a dispute concerning the completeness of Plaintiff’s responses to Interrogatory No. 5 1, which generally seeks the identification of statements by Defendants that Plaintiff asserts 6 are false. Following the discovery conference, the Court ordered the parties to further meet 7 and confer and to bring a motion to compel if the parties failed to resolve the dispute. Dkt. 8 No. 60. On August 30, 2022, Defendants brought the present Motion. Dkt. No. 61. 9 Plaintiff opposes the Motion. Dkt. No. 63. 10 II. 11 LEGAL STANDARD 12 The purpose of discovery is to “make a trial less a game of blind man’s bluff and 13 more a fair contest with the basic issues and facts disclosed to the fullest practicable 14 extent,” United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (citation 15 omitted), and “to narrow and clarify the basic issues between the parties.” Hickman v. 16 Taylor, 329 U.S. 495, 501 (1947). The Federal Rules of Civil Procedure permit a broad 17 scope of discovery: “Parties may obtain discovery regarding any nonprivileged matter that 18 is relevant to any party’s claim or defense and proportional to the needs of the case . . . .” 19 Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be 20 admissible in evidence to be discoverable.” Id. “Evidence is relevant if: (a) it has any 21 tendency to make a fact more or less probable than it would be without the evidence; and 22 (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. 23 A motion to compel discovery is appropriate when a party fails to answer an 24 interrogatory, where the act of failing to answer includes providing evasive or incomplete 25 responses. Fed. R. Civ. P. 37(a)(3)(B)(iii) and (a)(4). The party seeking to compel 26 discovery bears the burden of establishing that the requested discovery is relevant to a 27 claim or defense, while the party opposing discovery has the burden to show that the 28 discovery should be prohibited, as well as the burden of clarifying, explaining, and 1 supporting its objections. See FlowRider Surf, Ltd. v. Pacific Surf Designs, Inc., No. 15- 2 cv-1879-BEN-BLM, 2016 WL 6522807, at *2 (S.D. Cal. Nov. 3, 2016). 3 III. 4 DISCUSSION 5 A. Timeliness of Defendants’ Motion 6 As a threshold matter, the Court ordered briefing on the issue of the timeliness of 7 Defendants’ Motion under the Chambers Rules of Magistrate Judge Barbara L. Major 8 (“Major Rules”).1 Section V(E) of the Major Rules provides, in relevant part: 9 All discovery motions must be filed within 30 days of the event giving rise to the dispute . . . . For written discovery, the event 10 giving rise to the dispute is the service of the initial response or 11 production of documents, or the passage of the due date without a response or document production. 12 13 (emphasis added.) Thus, the parties were required to bring any discovery motion within 14 30 days of the date upon which Plaintiff served its initial responses to the Interrogatories. 15 Defendants contend the 30-day period began when Plaintiff served its amended 16 responses on July 21, 2022, not its initial responses. See Dkt. No. 61-1 at 3. Additionally, 17 Defendants argue that even if their interpretation of the Major Rules is incorrect, thereby 18 rendering the Motion untimely, good cause exists to consider the Motion because the 19 requested discovery is central to Plaintiff’s claims. Id. at 3-4. Defendants further assert 20 that good cause exists because any delay in bringing the Motion was due to their reliance 21 on Plaintiff’s representations that it would prepare amended responses to resolve the 22 underlying dispute without the need for Court intervention. See id. at 3, n. 3; see also Dkt. 23 No. 61-2 at 3-4. 24 25
26 27 1 Although the case is presently before the undersigned pursuant to an August 18, 2022 transfer order (Dkt. No. 58), the Major Rules govern because the events giving rise 28 1 The Major Rules are clear – the event giving rise to the dispute which triggers the 2 30-day timeline is the date of “service of the initial response.” See Major Rules–Civil 3 Cases § V(E). Plaintiff served its initial responses to the Interrogatories on April 25, 2022, 4 and the 30-day period to raise any discovery disputes ran on May 25, 2022. Accordingly, 5 Defendants’ Motion is untimely. 6 The Court agrees with Defendants that, as a general matter, parties should attempt 7 to resolve discovery disputes on their own before involving the Court. See Dkt. No. 61-1 8 at 3, n. 4. Indeed, the Major Rules require the parties to meet and confer before raising 9 discovery disputes, as do this Court’s Chambers Rules. But the parties may not continually 10 extend the 30-day deadline to raise discovery disputes on their own accord. Rather, where 11 the parties’ meet and confer efforts are ongoing, the appropriate remedy is to seek leave to 12 continue the 30-day deadline to raise discovery disputes with the Court. The parties in this 13 case did just that in April 2022 by jointly moving to continue the deadline for Plaintiff to 14 move to compel with respect to its first set of Requests for Production. See Dkt. No. 25. 15 The parties should have done the same with respect to Defendants’ Interrogatories. 16 Although Defendants’ motion is untimely, the Court will exercise its discretion to 17 consider the Motion on the merits, but the Court will require compliance with its Chambers 18 Rules with respect to any future discovery disputes. 19 B. Plaintiff’s Response to Defendants’ Interrogatory No. 1 20 Defendants’ Interrogatory No. 1 seeks the following information: 21 INTERROGATORY NO. 1: Identify each statement and representation of the Defendants — 22 whether such statement or representation was purportedly made 23 or asserted in the course of the advertising and marketing of the Defendants’ products, or otherwise — that the Plaintiff has relied 24 upon, or intends to rely upon, to support one or more claims 25 asserted in the Complaint. 26 See Dkt. No. 61-2 at 17. In its initial response to Interrogatory No. 1, Plaintiff stated its 27 objections and proceeded to provide 32 individual “statements and types of statements” 28 consisting of direct quotes, descriptive summaries, and video hyperlinks concerning the 1 alleged false statements that Plaintiff alleges Defendants made. See id. at 25-28. In its 2 amended response to Interrogatory No. 1, Plaintiff inserted a single sentence indicating that 3 each statement was sourced from “OSRX’s publicly available website, or included in 4 OSRX’s marketing materials, such as product catalogs, where they were originally 5 located.” See id. at 63. 6 1. Defendants’ Position 7 Defendants seek to compel Plaintiff to “specify now all its actionable statements” 8 that it intends to raise at trial, asserting that Plaintiff’s references to certain “types of 9 statements” is too vague. Dkt. No. 61-1 at 5. Defendants further argue that Plaintiff’s 10 “allegedly actionable statements nos. 3-20, 24-27, and 32…fail[] to identify any specific 11 source or location for the alleged statements,” instead only providing the broad reference 12 to Defendants’ website and marketing materials. Id. Defendants also assert that Plaintiff’s 13 “alleged statements nos. 2 and 10-13…fail[] to identify any specific statement at all,” and 14 only provide general descriptions of the alleged misrepresentations without a foundational 15 basis. Id. Finally, Defendants take issue with statement numbers 29, 30, and 31, which 16 identify certain documents and videos, but “fail[] to identify with specificity the statements 17 in those documents or videos which it contends supports its claims.” Id. 18 2. Plaintiff’s Position 19 Plaintiff asserts that its response to Interrogatory No. 1 is complete. As to statement 20 numbers 3-20, 24-27, and 32, almost all of which contain direct quotes, Plaintiff argues 21 that directly quoting from Defendants’ website or product catalog “must be sufficient to 22 identify the quoted statements.” Dkt. No. 63 at 5. With respect to statement numbers 2 23 and 10-13, Plaintiff explains its position that these are “categories of statements” that are 24 “false and misleading,” and which Plaintiff has “fairly identified.” Id. Plaintiff further 25 points to its response to Interrogatory No. 2, in which it alleges that certain examples of 26 Defendants’ claims of efficacy and safety, including the claims asserted in statement 27 numbers 2 and 10-13, are not supported by clinical studies or Food and Drug 28 Administration approval, and are therefore “false and misleading.” See id.; see also Dkt. 1 No. 61-2 at 29-30. In addressing Defendants’ arguments regarding statement numbers 29 2 and 30, Plaintiff contends the linked survey studies are “false and misleading in their 3 entirety,” rather than claiming that individual statements within the surveys are misleading. 4 Dkt. No. 63 at 6. Additionally, Plaintiff asserts that its description in statement number 31 5 takes a direct quote from a linked YouTube video, leaving “no more specific way to 6 identify it.” Id. In general, Plaintiff argues that it would “border on absurd” to require that 7 it identify every instance where Defendants have published the statements provided in its 8 response to Interrogatory No. 1. Id. at 5. 9 3. Analysis 10 The information requested in Interrogatory No. 1 regarding the facts supporting 11 Plaintiff’s causes of action is relevant under Rule 26(b)(1). Defendants are entitled to know 12 the specific statements and representations upon which Plaintiff will rely to prove its false 13 advertising and unfair competition causes of action and the source of each statement. See, 14 e.g., Leyva v. Allstate Fire & Cas. Ins. Co., 2:21-cv-987-RSM-DWC, 2022 WL 2046220, 15 at *2 (W.D. Wash. June 7, 2022) (“Defendants are entitled to know what acts and facts 16 Plaintiffs believe support the bases of their claims.”); United States ex rel. Dougherty v. 17 Guild Mortg. Co., 16-cv-2909-JAH-BLM, 2020 WL 3542391, at *5 (S.D. Cal. June 30, 18 2020) (“Generally, interrogatories directing a plaintiff to state facts supporting contentions 19 in his complaint are entirely appropriate.”) (citation omitted). 20 Assuming the statements set forth in Plaintiff’s response to Interrogatory No. 1 were 21 the result of diligent research already conducted by Plaintiff, it would be neither 22 burdensome nor absurd to require Plaintiff to identify the specific sources of the statements 23 upon which it will rely to prove its causes of action. It is not sufficient for Plaintiff to 24 broadly refer to Defendants’ website and marketing materials. Furthermore, the fact that 25 the referenced website and materials may be equally available and accessible to Defendants 26 does not obviate Plaintiff’s responsibility to specify the statements upon which it will rely 27 and identify the source of each statement. Moreover, Plaintiff must establish the 28 admissibility of each allegedly false statement at trial, presumably as a party-opponent 1 admission under Fed. R. Evid. 801(d)(2), by identifying the specific statement and its 2 source attributable to Defendants. It should not be unduly burdensome for Plaintiff to 3 provide that same information now. 4 The Court is mindful that certain allegedly false statements may have been published 5 in multiple marketing materials or that a single statement may have been disseminated as 6 part of marketing materials attached to multiple emails. However, the Court understands 7 Interrogatory No. 1 to request identification of each allegedly false statement and its source 8 (e.g., the specific marketing brochure containing the statement), not every instance in 9 which that false statement was made by Defendants. 10 The Court GRANTS IN PART Defendants’ Motion as follows: 11 Statements 1, 2 and 10-132 12 Plaintiff must supplement its response to identify the specific statements and the 13 specific source of each statement. 14 Statements 3-9, 14-20, 24-27 and 32 15 Plaintiff’s response adequately identifies the specific statements, but Plaintiff must 16 supplement its response to identify the specific source of each statement. 17 Statements 29-30 18 Plaintiff’s interrogatory response references “representations made in” two studies. 19 However, Plaintiff’s motion response contends that “Plaintiff does not assert certain 20 discrete statements within the surveys are misleading; the studies are false and misleading 21 in their entirety.” Dkt. No. 63, at 6. Plaintiff further asserts that this “render[s] any 22 representations made based on those studies misleading and false.” Id. 23 / / / 24 25
26 27 2 For ease of reference, the numbering corresponds to the 32 statements identified in Plaintiff’s interrogatory response. 28 1 Plaintiff must supplement its response to identify any “representations made in” the 2 studies upon which it will rely. If Plaintiff’s contention is that the studies are false in their 3 entirety, its interrogatory response should make this clear. Moreover, Plaintiff must 4 identify any “representations made based on those studies” upon which it intends to rely. 5 Statement 31 6 Plaintiff must supplement its response to identify the specific statements contained 7 in the identified video. 8 Defendants’ Motion with respect to statements 21-23 and 28 is DENIED. Plaintiff’s 9 interrogatory response adequately identifies the specific statements and source of each 10 statement. 11 C. Attorneys’ Fees 12 Defendants do not seek attorneys’ fees in connection with their motion. Plaintiff 13 seeks attorneys’ fees in a one-sentence footnote. Dkt. 63 at 6, n. 2. If a motion to compel 14 discovery is granted in part and denied in part, the court “may, after giving an opportunity 15 to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). 16 Here, the Court declines to apportion reasonable expenses. See Williams v. County. of San 17 Diego, No. 17-cv-00815-MMA-JLB, 2019 WL 2330227, at *11 (S.D. Cal. May 31, 2019) 18 (declining to apportion reasonable expenses because motion to compel granted and denied 19 in part). 20 D. Civility and Decorum 21 The Court takes this opportunity to remind the parties of the principles of 22 professionalism and civility that this District requires. See Civ.L.R. 2.1. Going forward, 23 the parties shall present all arguments without personal commentary or opinions 24 concerning another party’s actions or arguments. Comments regarding alleged “chicanery” 25 or a “thirst” for litigation do not assist the Court in resolving the legal issues at hand and 26 are neither appropriate nor appreciated. Counsel for both parties are officers of the court 27 and will conduct themselves as such in all dealings with each other and with the Court. 28 / / / I IV. 2 CONCLUSION 3 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 4 || Defendants’ Motion to Compel Further Responses to Interrogatories. Plaintiff must serve 5 ||a supplemental response to Interrogatory No. | consistent with this Order on or before 6 || September 30, 2022. 7 IT IS SO ORDERED. 8 Dated: September 16, 2022 9 10 , / Lf, CSfp/) eC a
12 Honorable David D. Leshner 3 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28