1 2 3 4 5 6 9 Case No.: 23CV1139-GPC (BLM)
11 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL FURTHER 12 V. RESPONSE TO PRODUCTION OF DOCUMENTS
14 Defendant. [ECF No. 37]
15 16 17
18 19 Currently before the Court is Plaintiff’s Motion to Compel Further Responses to Request 20 for Production of Documents, Numbers 4 and 5 (“MTC”) [ECF No. 37] and Defendant’s 21 Opposition (“Oppo.”) [ECF No. 38]. For the reasons set forth below, Plaintiffs’ motion is 24 This case was initiated on June 20, 2023 when Plaintiff Albert Renn (“Plaintiff) filed a 25 purported class action complaint alleging deceptive and fraudulent marketing on the part of 26 Defendant Otay Lakes Brewery LLC (“Defendant”) for its alcoholic beverage “Nova Kombucha” 27 (“Product”). ECF No. 1. On September 14, 2023, District Judge Gonzalo Curiel sua sponte dismissed Plaintiff’s complaint for lack of subject matter jurisdiction with leave to amend and 1 denied Defendant’s motion to dismiss as moot. ECF No. 11. On September 28, 2023, Plaintiff 2 filed his First Amended Complaint (“FAC”). ECF No. 12. In the FAC, Plaintiff alleges that the 3 Defendant’s labelling of the Product as “good for you” and “promoting ‘health, balance and 4 goodness’” are “false and misleading” as they “contain 6-8% alcohol by volume and consuming 5 alcohol causes a wide variety of health risks and problems.” Id. at ¶¶ 1, 3. Plaintiff also alleges 6 that Defendant advertised the Product on billboards around San Diego with the phrase “Your 7 Happy Healthy Hour” and this billboard artwork is also displayed on Defendant’s Facebook page, 8 as well as the “LinkedIn page of Tiago Carneiro,” one of Defendant’s founders. Id. at ¶¶ 17-18. 9 On March 1, 2024, Defendant answered Plaintiff’s FAC. ECF No. 23. 11 On May 14, 2024, Plaintiff served Defendant with a First Set of Request for Production of 12 Documents (“RFP”). See ECF No. 37-1, Declaration of Trevor Flynn in Support of Plaintiff’s 13 Motion to Compel Further Responses to Request for Production of Documents (“Flynn Decl.) at 14 ¶ 2. Defendant served its response, after receiving an extension of time from Plaintiff, on July 15 5, 2024. Id. Defendant did not produce any documents responsive to request numbers 4 and 16 5 but instead objected to these requests. Id. On July 18, 2024, plaintiff’s counsel emailed 17 defense counsel regarding the deficiencies in Defendant’s objections and responses to Plaintiff’s 18 RFP. Id. at ¶ 3. On July 29, 2024, the parties participated in a telephonic meet and confer to 19 discuss Defendant’s responses. Id. While the parties were able to resolve some of their 20 disputes, RFP Nos. 4 and 5 remain at issue. Id. at ¶ 4. 21 On August 7, 2024, counsel for Plaintiff and Defendant jointly contacted the Court 22 regarding a discovery dispute. Id. In regard to the dispute, the Court issued a briefing schedule, 23 and the parties timely filed the motion to compel and opposition. Id.; see also MTC and Oppo. 24 26 The scope of discovery under Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) is defined 27 as follows: 1 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 case, 2 considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ 3 resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 4 Information within this scope of discovery need not be admissible in evidence to 5 be discoverable.
6 Fed. R. Civ. P. 26(b)(1). Typically, the relevance standard is broad in scope and “encompass[es] 7 any matter that bears on, or that reasonably could lead to other matters that could bear on, any 8 issue that is or may be in a case.” Doherty v. Comenity Capital Bank, 2017 WL 1885677, at *2 9 (S.D. Cal. May 9, 2017). Relevance, however, is not without limits. Id. The 2015 amendment 10 to Rule 26(b) removed the phrase “reasonably calculated to lead to the discovery of admissible 11 evidence” because it was often misconstrued to define the scope of discovery. Fed. R. Civ. P. 12 26(b)(1) advisory committee’s notes (2015 amendment). Instead, to fall within the scope of 13 discovery, the information must also be “proportional to the needs of the case,” requiring lawyers 14 to “size and shape their discovery requests to the requisites of a case” while “eliminat[ing] 15 unnecessary or wasteful discovery.” Fed. Civ. R. P. 26(b)(1); Cancino Castellar v. McAleenan, 16 2020 WL 1332485, at *4 (S.D. Cal Mar. 23, 2020) (quoting Roberts v. Clark Cty. Sch. Dist., 312 17 F.R.D. 594, 603 (D. Nev. 2016)). 18 District courts have broad discretion to determine relevancy for discovery purposes. D.M. 19 v. County of Merced, 2022 WL 229865, at * 2 (E.D. Cal. Jan. 26, 2022) (citing Hallett v. Morgan, 20 296 F.3d 732, 751 (9th Cir. 2002) and Surfvivor Media v. Survivor Prods., 406 F.3d 625, 635 21 (9th Cir. 2005)). District courts also have broad discretion to limit discovery to prevent its abuse. 22 See Fed. R. Civ. P. 26(b)(2) (instructing that courts must limit discovery where the party seeking 23 the discovery “has had ample opportunity to obtain the information by discovery in the action” 24 or where the proposed discovery is “unreasonably cumulative or duplicative,” “obtain[able] from 25 some other source that is more convenient, less burdensome or less expensive,” or where it “is 26 outside the scope permitted by Rule 26(b)(1)”). Further, “[w]hen analyzing the proportionality 27 of a party’s discovery requests, a court should consider the importance of the issues at stake in 1 the action, the amount in controversy, the parties’ relative access to the information, the parties’ 2 resources, the importance of the discovery in resolving the issues, and whether the burden or 3 expense of the proposed discovery outweighs its likely benefit. Cancino, 2020 WL 1332485, at 4 *4 (citing Fed. R. Civ. P. 26(b)(1)). 5 Fed. Civ. R. P. 34 provides that a party may serve on another request for production of 6 documents, electronically stored information, or tangible things within the scope of Fed. Civ. R. 7 P. 26(b). Fed. R. Civ. P. 34(a). Where a party fails to produce documents requested under Rule 8 34, the party propounding the request for production of documents may move to compel 9 discovery. See Fed. R. Civ. P. 37(a). “The party seeking to compel discovery has the burden of 10 establishing that its requests satisfy the relevancy requirements of Rule 26(b)(1). Thereafter, 11 the party opposing discovery has the burden of showing that the discovery should be prohibited, 12 and the burden of clarifying, explaining, or supporting its objections.” Williams v. County of San 13 Diego, 2019 WL 2330227, at *3 (citing Bryant v. Ochoa, No. 7cv200 JM (PCL), 2009 WL 14 1390794, at *1 (S.D. Cal. May 14, 2009) (internal quotations omitted).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 9 Case No.: 23CV1139-GPC (BLM)
11 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL FURTHER 12 V. RESPONSE TO PRODUCTION OF DOCUMENTS
14 Defendant. [ECF No. 37]
15 16 17
18 19 Currently before the Court is Plaintiff’s Motion to Compel Further Responses to Request 20 for Production of Documents, Numbers 4 and 5 (“MTC”) [ECF No. 37] and Defendant’s 21 Opposition (“Oppo.”) [ECF No. 38]. For the reasons set forth below, Plaintiffs’ motion is 24 This case was initiated on June 20, 2023 when Plaintiff Albert Renn (“Plaintiff) filed a 25 purported class action complaint alleging deceptive and fraudulent marketing on the part of 26 Defendant Otay Lakes Brewery LLC (“Defendant”) for its alcoholic beverage “Nova Kombucha” 27 (“Product”). ECF No. 1. On September 14, 2023, District Judge Gonzalo Curiel sua sponte dismissed Plaintiff’s complaint for lack of subject matter jurisdiction with leave to amend and 1 denied Defendant’s motion to dismiss as moot. ECF No. 11. On September 28, 2023, Plaintiff 2 filed his First Amended Complaint (“FAC”). ECF No. 12. In the FAC, Plaintiff alleges that the 3 Defendant’s labelling of the Product as “good for you” and “promoting ‘health, balance and 4 goodness’” are “false and misleading” as they “contain 6-8% alcohol by volume and consuming 5 alcohol causes a wide variety of health risks and problems.” Id. at ¶¶ 1, 3. Plaintiff also alleges 6 that Defendant advertised the Product on billboards around San Diego with the phrase “Your 7 Happy Healthy Hour” and this billboard artwork is also displayed on Defendant’s Facebook page, 8 as well as the “LinkedIn page of Tiago Carneiro,” one of Defendant’s founders. Id. at ¶¶ 17-18. 9 On March 1, 2024, Defendant answered Plaintiff’s FAC. ECF No. 23. 11 On May 14, 2024, Plaintiff served Defendant with a First Set of Request for Production of 12 Documents (“RFP”). See ECF No. 37-1, Declaration of Trevor Flynn in Support of Plaintiff’s 13 Motion to Compel Further Responses to Request for Production of Documents (“Flynn Decl.) at 14 ¶ 2. Defendant served its response, after receiving an extension of time from Plaintiff, on July 15 5, 2024. Id. Defendant did not produce any documents responsive to request numbers 4 and 16 5 but instead objected to these requests. Id. On July 18, 2024, plaintiff’s counsel emailed 17 defense counsel regarding the deficiencies in Defendant’s objections and responses to Plaintiff’s 18 RFP. Id. at ¶ 3. On July 29, 2024, the parties participated in a telephonic meet and confer to 19 discuss Defendant’s responses. Id. While the parties were able to resolve some of their 20 disputes, RFP Nos. 4 and 5 remain at issue. Id. at ¶ 4. 21 On August 7, 2024, counsel for Plaintiff and Defendant jointly contacted the Court 22 regarding a discovery dispute. Id. In regard to the dispute, the Court issued a briefing schedule, 23 and the parties timely filed the motion to compel and opposition. Id.; see also MTC and Oppo. 24 26 The scope of discovery under Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) is defined 27 as follows: 1 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 case, 2 considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ 3 resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 4 Information within this scope of discovery need not be admissible in evidence to 5 be discoverable.
6 Fed. R. Civ. P. 26(b)(1). Typically, the relevance standard is broad in scope and “encompass[es] 7 any matter that bears on, or that reasonably could lead to other matters that could bear on, any 8 issue that is or may be in a case.” Doherty v. Comenity Capital Bank, 2017 WL 1885677, at *2 9 (S.D. Cal. May 9, 2017). Relevance, however, is not without limits. Id. The 2015 amendment 10 to Rule 26(b) removed the phrase “reasonably calculated to lead to the discovery of admissible 11 evidence” because it was often misconstrued to define the scope of discovery. Fed. R. Civ. P. 12 26(b)(1) advisory committee’s notes (2015 amendment). Instead, to fall within the scope of 13 discovery, the information must also be “proportional to the needs of the case,” requiring lawyers 14 to “size and shape their discovery requests to the requisites of a case” while “eliminat[ing] 15 unnecessary or wasteful discovery.” Fed. Civ. R. P. 26(b)(1); Cancino Castellar v. McAleenan, 16 2020 WL 1332485, at *4 (S.D. Cal Mar. 23, 2020) (quoting Roberts v. Clark Cty. Sch. Dist., 312 17 F.R.D. 594, 603 (D. Nev. 2016)). 18 District courts have broad discretion to determine relevancy for discovery purposes. D.M. 19 v. County of Merced, 2022 WL 229865, at * 2 (E.D. Cal. Jan. 26, 2022) (citing Hallett v. Morgan, 20 296 F.3d 732, 751 (9th Cir. 2002) and Surfvivor Media v. Survivor Prods., 406 F.3d 625, 635 21 (9th Cir. 2005)). District courts also have broad discretion to limit discovery to prevent its abuse. 22 See Fed. R. Civ. P. 26(b)(2) (instructing that courts must limit discovery where the party seeking 23 the discovery “has had ample opportunity to obtain the information by discovery in the action” 24 or where the proposed discovery is “unreasonably cumulative or duplicative,” “obtain[able] from 25 some other source that is more convenient, less burdensome or less expensive,” or where it “is 26 outside the scope permitted by Rule 26(b)(1)”). Further, “[w]hen analyzing the proportionality 27 of a party’s discovery requests, a court should consider the importance of the issues at stake in 1 the action, the amount in controversy, the parties’ relative access to the information, the parties’ 2 resources, the importance of the discovery in resolving the issues, and whether the burden or 3 expense of the proposed discovery outweighs its likely benefit. Cancino, 2020 WL 1332485, at 4 *4 (citing Fed. R. Civ. P. 26(b)(1)). 5 Fed. Civ. R. P. 34 provides that a party may serve on another request for production of 6 documents, electronically stored information, or tangible things within the scope of Fed. Civ. R. 7 P. 26(b). Fed. R. Civ. P. 34(a). Where a party fails to produce documents requested under Rule 8 34, the party propounding the request for production of documents may move to compel 9 discovery. See Fed. R. Civ. P. 37(a). “The party seeking to compel discovery has the burden of 10 establishing that its requests satisfy the relevancy requirements of Rule 26(b)(1). Thereafter, 11 the party opposing discovery has the burden of showing that the discovery should be prohibited, 12 and the burden of clarifying, explaining, or supporting its objections.” Williams v. County of San 13 Diego, 2019 WL 2330227, at *3 (citing Bryant v. Ochoa, No. 7cv200 JM (PCL), 2009 WL 14 1390794, at *1 (S.D. Cal. May 14, 2009) (internal quotations omitted). 16 Plaintiff seeks an order from the Court compelling Defendant to produce documents in 17 response to RFP Nos. 4 and 5. See generally MTC. 18 RFP Nos. 4 and 5 and Defendant’s responses are as follows: 19 REQUEST FOR PRODUCTION NO. 4: Exemplars of non-label 20 ADVERTISEMENTS of the PRODUCTS. 21 RESPONSE: Defendant incorporates its general objections as if fully set forth in this Response. To the extent that Plaintiff’s Request seeks documents outside the 22 applicable statute of limitations or that involve non-label ADVERTISEMENTS of the PRODUCTS, such documents are not relevant to any claim or defense and will not 23 lead to any information that is relevant to any claim or defense asserted in this 24 case, which solely relate to Defendant’s label on certain Nova Easy Kombucha flavors with: “Nova Easy Kombucha is one of those rare things where health, 25 balance and goodness get a lot more interesting,” and “Some things in life are good for you, other things in life are fun. They don’t meet each other very often, 26 but when they do, life gets pretty brilliant, pretty quickly.” The Request is, 27 therefore, unduly burdensome and not proportionate to the needs of the case. Accordingly, Defendant will not search for or produce any documents that are 1 REQUEST FOR PRODUCTION NO. 5: DOCUMENTS sufficient to show all billboards that depict the PRODUCTS, which are currently or have ever been visible 2 to the public. 3 RESPONSE: Defendant incorporates its general objections as if fully set forth in this Response. Defendant further objects to the vague, undefined, and 4 imponderable reference to DOCUMENTS “sufficient to show” certain billboards. To the extent that Plaintiff’s Request seeks documents outside the applicable statute 5 of limitations or that involve non-label ADVERTISEMENTS of the PRODUCTS, such 6 documents are not relevant to any claim or defense and will not lead to any information that is relevant to any claim or defense asserted in this case, which 7 solely relate to Defendant’s label on certain Nova Easy Kombucha flavors with: “Nova Easy Kombucha is one of those rare things where health, balance and 8 goodness get a lot more interesting,” and “Some things in life are good for you, 9 other things in life are fun. They don’t meet each other very often, but when they do, life gets pretty brilliant pretty quickly.” The Request is, therefore, unduly 10 burdensome and not proportionate to the needs of the case. Accordingly, Defendant will not search for or produce any documents that are responsive solely 11 to this Request. 12 MTC at 2-3. 13 Plaintiff argues that the non-label advertisements are relevant to show the “materiality of 14 the challenged label claims.” MTC at 4 (citing Barber v. Johnson & Johnson Co. , 3:16cv1954- 15 JLS-JSG, 2017 WL 2903255, at * 9 (C.D. Cal. Apr. 4, 2017). In Barber, the defendant moved to 16 strike the plaintiffs’ allegations regarding “non-label statements” in their amended complaint, 17 which alleged false advertising of a product, on the ground that “these unseen non-label 18 statements played no role in Plaintiffs’ alleged injuries.” Id. In denying the defendants’ motion 19 to strike the non-label allegations, the court found that even if the plaintiff was unaware of the 20 non-label statements, they would still be relevant to the plaintiffs’ claim “for purposes of 21 establishing materiality at class certification or proving the elements for punitive damages.” Id. 22 In this matter, Plaintiff specifically included allegations relating to the billboards used to 23 promote the Product and their inclusion of these billboards in the Defendant’s social media 24 pages, along with photos of the billboard, in his FAC and these were specifically cited by District 25 Judge Curiel in his order partially denying Defendant’s motion to dismiss. MTC at 4 (citing Order 26 on Motion to Dismiss FAC, ECF No. 20, “Defendant advertises the Products on billboards around 27 San Diego with the phrase ‘Your Happy Healthy Hour” and the “[t]he billboard artwork is also 1 displayed on the LinkedIn page of Tiago Carneiro, a founder of [Defendant].”) 2 In response, Defendant, rather than distinguish Barber or argue that the findings in 3 Barber are inapplicable to the case before this Court, states that Plaintiff “misquotes” Barber. 4 Oppo. at 4. This is correct but Plaintiff did not misstate the findings in Barber. The quote that 5 Plaintiff attributes to Barber in his moving papers is a parenthetical found in Becerra v. Dr. 6 Pepper/Seven Up Inc, 2:17cv5921-WQH, 2018 WL 3995832, at *5 (N.D. Cal. 2018) (citing 7 Barber, 2017 WL 2903255, at *9.) The quote is in the parenthetical to the citation of Barber 8 which states that Barber found “advertisements not personally relied upon are still relevant for 9 class certification or punitive damages.” Id. This is the same issue before this Court. The non- 10 label advertising Plaintiff is requesting relates to the use of the term “healthy” in advertising the 11 product which is also part of the claim relating to the labelling of the product and the use of the 12 word “healthy.” Defendant does not address how Barber is, or is not, applicable to the discovery 13 sought in this matter. Defendant repeatedly argues that the discovery sought is “unrelated 14 advertising and billboards” but offers no legal or factual basis to dispute the relevancy of this 15 advertising. Defendant contends that the “crux” of Plaintiff’s FAC is the specific reliance on the 16 two labels at issue. Oppo. at 4. However, as Judge Curiel’s Order states, Plaintiff’s FAC alleges 17 “deceptive and fraudulent marketing” of the product itself which does not limit the relevancy of 18 the discovery only to the labels. ECF No. 20 at 1. Plaintiff is seeking discovery for non-label 19 discovery that makes similar claims in the labelling of the Product that is the focus on of this 20 action. The Court finds that the discovery Plaintiff is seeking in RFP Nos. 4 and 5 is relevant to 21 the claims that are brought in this action. 22 Defendant also argues in their challenge to the relevancy of this discovery, that Plaintiff 23 has failed to “address the purported relevance of any information pre-dating June 20, 2019. 24 Oppo. at 4. Plaintiff did not address this timeframe in his motion. Defendant objected to the 25 relevancy of Plaintiff’s discovery request, in part, on the ground that Plaintiff sought “documents 26 outside the applicable statute of limitations” which are “not relevant to any claim or defense.” 27 MTC at 2-3. Plaintiff filed this action on June 20, 2023. ECF No. 1. 1 The longest applicable statute of limitations period in this matter is four years under 2 California's Unfair Competition Law. CAL. BUS. & PROF. CODE § 17208 (“Any action to enforce 3 any cause of action pursuant to [the UCL] shall be commenced within four years after the cause 4 of action accrued.”). However, “[t]he statute of limitations is not a rigid barrier separating 5 discoverable information from information outside the scope of discovery.” Gottesman v. 6 Santana, No. 3:16cv2902 JLS (JLB), 2017 WL 5889765, at *5 (S.D. Cal. Nov. 29, 2017). 7 Defendant cites to no authority that the statute of limitations “provides a definitive boundary for 8 discoverable information.” Id. Accordingly, the Court finds that extending this time frame an 9 additional year to June 19, 2018 would be relevant to Plaintiff’s claims and not unduly 10 burdensome to Defendant. 11 Finally, Defendant contends that the “Court must balance the relevancy of the discovery 12 Plaintiff seeks against the burden its production would impose on Defendant.” Oppo. at 6. 13 Defendant contends that the requests by Plaintiff “will cause undue burden.” Id. However, 14 Defendant has provided no information to substantiate their claim of undue burden. Defendant 15 must provide sufficient detail regarding the time, money, and procedures required to produce 16 these documents. Shaw v. Experian Info. Sols., Inc., 306 F.R.D. 293, 301 (S.D. Cal. 2015). 17 Unsupported, conclusory statements regarding expense and burden are not sufficient to 18 illustrate why requested discovery is not proportional. Gold v. Kaplan, No. 2:21cv03204-FLA- 19 JDE, 2021 WL 6618643, at *5 (C.D. Cal. Dec. 2, 2021) (citing Sung Gon Kang v. Credit Bureau 20 Connection, Inc., 2020 WL 1689708, at *5 (E.D. Cal. Apr. 7, 2020)). There is no such showing 21 in Defendant’s response to Plaintiff’s motion to compel and thus, Defendant has not satisfied its 22 burden of proving that a response would be unduly burdensome. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 2 Plaintiff's motion to compel responses to RFP Nos. 4 and 5 is GRANTED. Defendant 3 ||must serve Plaintiff with responses to RFP Nos. 4 and 5 by September 19, 2024. The Court 4 || modifies Plaintiff's requests to limit the timeframe of the requested discovery from June 19, 5 to the date the initial requests were served on Defendant. 7 - g Dated: 9/5/2024 lobe Mager 9 Hon. Barbara L. Major 0 United States Maqistrate Judde
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28