Valentine v. Crocs, Inc.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN FRANCISCO DIVISION 7 8 MARTHA VALENTINE, et al., Case No. 22-cv-07463-TLT (PHK) 9 Plaintiffs, REDACTED ORDER ON 10 v. DISCOVERY LETTER BRIEFS NOS. 4-6 11 CROCS, INC., Re: Dkts. 70, 75, 79 12 Defendant. Discovery Management Conference SET 13 for August 16, 2024 at 1 PM 14 15 This is a putative class action brought by Plaintiffs Martha Valentine, Ruby Cornejo, and 16 Tiffany Avino (collectively “Plaintiffs”) against Defendant Crocs, Inc. concerning “shoes that 17 Defendant sells made of 90% or more Croslite® material.” [Dkt. 33 at ¶¶ 1-2]. The case has been 18 referred to the undersigned for all discovery purposes. See Dkt. 46. 19 Now before the Court are three joint discovery letter briefs regarding ten disputes: (1) 20 Plaintiffs’ requests for production of Crocs’ sales data; (2) Plaintiffs’ request for production of 21 Crocs’ pricing documents; (3) Defendant’s request for production of Plaintiffs’ shoes for 22 inspection; (4) Defendant’s request for production of Plaintiffs’ purchase receipts; (5) Defendant’s 23 request to depose Plaintiff Valentine in person in San Francisco; (6) Plaintiffs’ request for 24 25 26 27 1 production of Crocs marketing materials; (7) Plaintiffs’ request for production of Crocs’ customer 2 complaints relating to “small size;” (8) Plaintiffs’ request for production of documents relating to 3 how consumers use Crocs’ products; (9) Plaintiffs’ request for mold drawings of each model of 4 Crocs’ shoes; and (10) Plaintiffs’ request for the Court to set a date for the deposition of Crocs 5 employee Marco Piano. [Dkts. 70, 75, 79]. The Court held a discovery hearing regarding these 6 disputes on May 3, 2024 and, upon review of all briefing and arguments of counsel, now issues 7 this Order. 8 LEGAL STANDARD 9 Federal Rule of Civil Procedure 26(b)(1) delineates the scope of discovery in federal civil 10 actions and provides that “[p]arties may obtain discovery regarding any nonprivileged matter that 11 is relevant to any party's claim or defense and proportional to the needs of the case.” Information 12 need not be admissible to be discoverable. Id. Relevance for purposes of discovery is broadly 13 defined to encompass “any matter that bears on, or that reasonably could lead to other matter that 14 could bear on, any issue that is or may be in the case.” In re Williams-Sonoma, Inc., 947 F.3d 535, 15 539 (9th Cir. 2020) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-51 (1978)); 16 see also In re Facebook, Inc. Consumer Privacy User Profile Litig., No. 18-MD-2843 VC (JSC), 17 2021 WL 10282215, at *4 (N.D. Cal. Sept. 29, 2021) (“Courts generally recognize that relevancy 18 for purposes of discovery is broader than relevancy for purposes of trial.”) (alteration omitted). 19 While the scope of relevance is broad, discovery is not unlimited. ATS Prods., Inc. v. 20 Champion Fiberglass, Inc., 309 F.R.D. 527, 531 (N.D. Cal. 2015) (“Relevancy, for purposes of 21 discovery, is defined broadly, although it is not without ultimate and necessary boundaries.”). 22 Information, even if relevant, must be “proportional to the needs of the case” to fall within the 23 scope of permissible discovery. Fed. R. Civ. P. 26(b)(1). The 2015 amendments to Rule 26(b)(1) 24 emphasize the need to impose reasonable limits on discovery through increased reliance on the 25 common-sense concept of proportionality: “The objective is to guard against redundant or 26 disproportionate discovery by giving the court authority to reduce the amount of discovery that 27 may be directed to matters that are otherwise proper subjects of inquiry. The [proportionality 1 discouraging discovery overuse.” Fed. R. Civ. P. 26 advisory committee’s note to 2015 2 amendment. In evaluating the proportionality of a discovery request, a court should consider “the 3 importance of the issues at stake in the action, the amount in controversy, the parties’ relative 4 access to the information, the parties’ resources, the importance of the discovery in resolving the 5 issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” 6 Fed. R. Civ. P. 26(b)(1). 7 The party seeking discovery bears the burden of establishing that its request satisfies the 8 relevancy requirements under Rule 26(b)(1). La. Pac. Corp. v. Money Mkt. 1 Inst. Inv. Dealer, 9 285 F.R.D. 481, 485 (N.D. Cal. 2012). The resisting party, in turn, has the burden to show that the 10 discovery should not be allowed. Id. The resisting party must specifically explain the reasons 11 why the request at issue is objectionable and may not rely on boilerplate, conclusory, or 12 speculative arguments. Id.; see also Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 13 1975) (“Under the liberal discovery principles of the Federal Rules defendants were required to 14 carry a heavy burden of showing why discovery was denied.”). 15 The Court has broad discretion and authority to manage discovery. U.S. Fidelity & Guar. 16 Co. v. Lee Inv. LLC, 641 F.3d 1126, 1136 n.10 (9th Cir. 2011) (“District courts have wide latitude 17 in controlling discovery, and their rulings will not be overturned in the absence of a clear abuse of 18 discretion.”); Laub v. U.S. Dep’t of Int., 342 F.3d 1080, 1093 (9th Cir. 2003). As part of its 19 inherent discretion and authority, the Court has broad discretion in determining relevancy for 20 discovery purposes. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005) 21 (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). The Court’s discretion extends to 22 crafting discovery orders that may expand, limit, or differ from the relief requested. See 23 Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (holding trial courts have “broad discretion to 24 tailor discovery narrowly and to dictate the sequence of discovery”). For example, the Court may 25 limit the scope of any discovery method if it determines that “the discovery sought is unreasonably 26 cumulative or duplicative, or can be obtained from some other source that is more convenient, less 27 burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). 1 April 26, 2024, with a class certification motion due on May 31, 2024. See Dkt. 59. 2 Precertification discovery lies entirely within the Court’s sound discretion. Artis v. Deere & Co., 3 276 F.R.D. 348, 351 (N.D. Cal. 2011) (citing Vinole v. Countrywide Home Loans, Inc., 571 F.3d 4 935, 942 (9th Cir. 2009)). In the context of class certification, discovery must be limited so that it 5 does not place an undue burden on the opposing party. Valentine v. Crocs, Inc., No. 22-cv-07463- 6 TNT (PHK), 2023 WL 7461852, at *1 (N.D. Cal. Nov. 10, 2023) (citing Montano v. Chao, No. 7 07-cv-00735-CMA-KMT, 2008 WL 5377745, at *3 (D. Colo. Dec. 19, 2008)). A court in its 8 sound discretion may permit limited and targeted non-burdensome discovery on class certification, 9 where the proponent demonstrates such discovery is in the interests of justice and consistent with 10 the language and spirit of Rule 23. Id. (citing Mayo v. Hartford Life Ins. Co., 214 F.R.D. 465, 11 469-70 (S.D. Tex. 2002)). In analyzing precertification discovery disputes, the Court must 12 consider “the need for discovery, the time required, and the probability of discovery providing 13 necessary factual information.” Frost v. LG Electronics, Inc., No. 16-cv-05206-BLF, 2018 WL 14 11606311, at *4 (N.D. Cal. Mar. 29, 2018) (quoting Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 15 1304, 1313 (9th Cir. 1977)). 16 The Court notes that, generally, discovery in a putative class action at the precertification 17 stage is limited to certification issues, such as the number of class members, the existence of 18 common questions, typicality of claims, and the representatives’ ability to represent the class. 19 Oppenheimer, 437 U.S. at 359. Although discovery on the merits is usually deferred until it is 20 certain that the case will be allowed to proceed as a class action, “the merits/certification 21 distinction is not always clear” and “the two do overlap.” True Health Chiropractic Inc. v. 22 McKesson Corp., No. 13-cv-02219-JST, 2015 WL 273188, at *2 (N.D. Cal. Jan. 20, 2015); see 23 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) (explaining that the “rigorous analysis” 24 under Rule 23(a) often “will entail some overlap with the merits of the plaintiff’s underlying 25 claim. That cannot be helped.”). In this case, discovery has not been bifurcated or phased. As 26 such, this Court is mindful that some leeway should be afforded with respect to merits-related 27 issues as part of the precertification discovery determination. Further, the Court is cognizant that 1 motion hearing on class certification, as compared to the period of time built into the schedule for 2 fact discovery prior to that hearing, which would support taking at least some merits-related 3 discovery during or as part of the precertification fact discovery period. See Dkts. 25, 57. The 4 Court now turns to the discovery disputes at hand and this Order incorporates by reference the 5 Court’s verbal instructions and orders to the Parties at the May 3rd hearing. 6 ANALYSIS 7 I. Sales Data 8 The Parties’ first dispute concerns Plaintiffs’ discovery requests for all documents related 9 to sales of Crocs products during the class period both nationwide and in California specifically. 10 [Dkt. 70 at 1-4]. Plaintiffs complain that Defendant has only produced a “spreadsheet” of these 11 materials. Id. at 1. Plaintiffs argue that the spreadsheet is “plainly deficient” because: (1) it does 12 not include sales figures for the last three quarters of 2021 and “omits 2023 entirely;” (2) it uses an 13 “undefined method” to calculate annual total sales which “differs from net to gross;” (3) its 14 formatting is “unwieldy and unusable;” and (4) it does not include “California non-direct sales” 15 figures. Id. at 1-2. Plaintiffs argue that they are entitled to “complete information” regarding sales 16 of the Crocs products at issue during the relevant class period that is in a “useable” format. Id. at 17 2. Plaintiffs argue that it is “imperative” that they obtain this information prior to class 18 certification so that their expert can create an accurate damages model. Id. At the May 3rd 19 hearing, Plaintiffs argued that they particularly need the California sales data (including 2023 sales 20 figures) formatted to show “units sold.” 21 Defendant argues that it has already produced “four master spreadsheets containing 22 multiple tabs” that provides “extensive sales data for multiple quarters during a five-year period 23 from the years 2018-2022, including the total units of Crocs shoes sold and monetary sales 24 numbers by shoe type.” Id. at 3. Defendant states that the sales data already produced 25 encompasses “hundreds of millions of shoes.” Id. Defendant states that it compiled sales data for 26 “all shoe types (as Plaintiffs requested)” and contends that “all data tied to Classic Bae and to 27 Classic Clogs sales over multiple years from the class period can be sorted out for review.” Id. 1 Defendant argues that it should not be forced “to create additional spreadsheets to facilitate 2 Plaintiffs’ damages models” at this stage of the case, or “to create documents that do not exist.” 3 Id. 4 Parties seeking class certification “must be able to show that their damages stemmed from 5 the defendant’s actions that created the legal liability.” Leyva v. Medline Indus. Inc., 716 F.3d 6 510, 514 (9th Cir. 2013) (citing Comcast Corp. v. Behrend, 569 U.S. 27, 38 (2013)). To satisfy 7 this requirement, Plaintiffs must “establish[] that damages are capable of measurement on a 8 classwide basis.” Lytle v. Nutramax Lab’ies, Inc., --- F.4th ----, 2024 WL 1710663, at *5 (9th 9 Cir. 2024) (quoting Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 569 U.S. 27, 10 34 (2013)). Plaintiffs need not “actually prove that classwide damages exist to obtain class 11 certification.” Id. at *6. For purposes of certifying a class, “class action plaintiffs may rely on an 12 unexecuted damages model to demonstrate that damages are susceptible to common proof so long 13 as the district court finds, by a preponderance of the evidence, that the model will be able to 14 reliably calculate damages in a manner common to the class at trial.” Id. 15 At the May 3rd hearing, it became evident that the Parties’ descriptions of what has and 16 has not been produced are at least inconsistent, if not contradictory. After discussion with 17 counsel, the Court determined that Defendant’s previously produced spreadsheet may lack 18 information on units sold for all time periods reported in that spreadsheet. Accordingly, as stated 19 at the May 3rd hearing, the Court ORDERS Defendant to provide Plaintiffs with the “units sold” 20 information relating to any and all California sales data already produced by no later than May 10, 21 2024. Further, at the hearing it appeared undisputed that Defendant has not produced a 22 spreadsheet reporting California sales data covering the entire 2023 calendar year. Accordingly, 23 the Court further ORDERS Defendant to produce all available California sales data for the 2023 24 calendar year (formatted to include “units sold”) by no later than May 13, 2024. 25 The Court finds that Plaintiffs’ request for additional discovery of Crocs’ sales data beyond 26 these parameters, even if relevant, is unduly burdensome and not proportional to the needs of the 27 case, particularly at this stage of the case and in light of the purported need Plaintiffs have for the 1 substantially dispute Defendant’s assertion that the spreadsheet previously produced already 2 includes much of the data which Plaintiffs’ motion argued was lacking. This (among other areas 3 discussed at the hearing and in this Order) demonstrates that counsel for the Parties could have and 4 should have communicated more effectively and openly during the meet and confers prior to 5 raising this dispute for resolution with the Court. Accordingly, the Parties are ORDERED to file 6 a Joint Status Report by no later than May 13, 2024, advising the Court as to the status of 7 Defendant’s production of the California sales data as ordered herein and at the hearing. 8 II. Pricing Documents 9 The Parties’ second dispute concerns Plaintiffs’ request for documents relating to the 10 pricing of Crocs’ products, including competitor pricing information. [Dkt. 70 at 4-5]. Plaintiffs 11 complain that Defendant has not produced any documents showing: (1) the “actual, market- 12 clearing prices” for the Classic Clog and Classic Bae shoe styles; (2) “the factors Crocs uses to set 13 its prices” for those products; or (3) “pricing for competing brands or products.” Id. at 4. 14 Plaintiffs argue that such information is both “critical for the damages model” and “necessary to 15 rebut common attacks on price premium damages models.” Id. 16 Defendant, in response, states that it has already produced “over 70,000 pages of 17 documents and spreadsheets relevant to [Plaintiffs’] RFPs, culled from over a million documents 18 captured by Plaintiffs’ ESI searches, which included ‘pricing’ in the terms.” Id. at 5. Defendant 19 argues that Plaintiffs have not explained “why the MSRP and wholesale pricing data already 20 produced would not provide their expert with sufficient information to identify the damages model 21 that would be used to calculate class[]wide damages.” Id. At the May 3rd hearing, Defendant 22 suggested that it might be willing to stipulate in connection with class certification briefing that 23 the pricing information already produced would be sufficient information for Plaintiffs’ expert to 24 create a damages model, without waiving arguments as to the adequacy or correctness of the 25 model itself. 26 As stated at the May 3rd hearing, the Court ORDERS the Parties to promptly meet and 27 confer regarding Defendant’s potential stipulation as to the sufficiency of pricing data already 1 The Court further ORDERS the Parties to promptly meet and confer to reach mutual 2 agreement on the defined “Products” at issue in this case, in light of the status of the case and the 3 impact of the Order on the most recent motion to dismiss. See Dkt. 71. The Parties shall report on 4 the status of these issues in their Joint Status Report due May 13, 2024. 5 The Court finds that Plaintiffs’ request for additional pricing documents beyond that which 6 has already been produced is not proportional to the needs of the case, particularly at this stage of 7 the case and in light of the purported need for such discovery with regard to their damages model. 8 Accordingly, and in light of the potential stipulation the Parties are discussing, the request to 9 compel Defendant to perform a further search for additional pricing documents is DENIED. 10 III. Plaintiffs’ Shoes 11 The Parties’ third dispute concerns Defendant’s request to “measure, inspect, and 12 photograph” Plaintiffs’ shoes at Crocs’ headquarters in Colorado. [Dkt. 75 at 1-3]. Plaintiffs 13 report that they are amenable to producing their shoes for inspection at Crocs headquarters but 14 request that Plaintiffs’ attorney be physically present inside the room during the inspection and 15 further request that the inspection be videotaped. Id. at 2. 16 Defendant opposes Plaintiffs’ requests, stressing that Crocs intends to have its own counsel 17 present at the inspection “to be able to discuss issues related to the inspection with relevant 18 employees in a privileged setting.” Id. Defendant argues that it is “entitled to inspect [Plaintiffs’] 19 shoes in consultation with its counsel and knowledgeable employees” without being videotaped or 20 otherwise observed by Plaintiffs’ counsel. Id. At the May 3rd hearing, Defendant’s counsel 21 represented that its inspection would involve outside counsel, in-house counsel, and a consultant 22 who would attend by Zoom videoconference. 23 At the May 3rd hearing, the Parties confirmed that they have agreed on the location of the 24 inspection of Plaintiffs’ shoes, as well as tentative dates for at least some of those inspections. As 25 such, the Court ORDERS the Parties to comply with their agreement on those issues and to 26 promptly meet and confer regarding any remaining logistical and scheduling issues that remain 27 unresolved. 1 be physically present inside the room where the inspection will take place during the inspections, 2 and (ii) whether Plaintiffs can videotape the inspections. As to the first issue, the request is 3 denied. Given that one of Defendant’s participants in the inspection will be attending by 4 videoconference, it is impractical to force Defendant’s inspection team to step outside the room 5 every time they wish to have a conversation which would be covered by the attorney-client 6 privilege and/or the work product doctrine. The Court is cognizant of the public policy reasons 7 supporting the attorney-client privilege and work product doctrines. See Baird v. Koerner, 279 8 F.2d 623, 629 (9th Cir. 1960) (“While it is the great purpose of law to ascertain the truth, there is 9 the countervailing necessity of [e]nsuring the right of every person to freely and fully confer and 10 confide in one having knowledge of the law, and skilled in its practice, in order that the former 11 may have adequate advice and a proper defense.”). While obviously Plaintiffs’ counsel can be 12 present at the start of the inspection to deliver the shoes (and to confirm the video camera, 13 discussed below, is set up appropriately) as well as at the end of the inspection to retrieve the 14 shoes, Plaintiffs’ counsel shall leave the room during the inspection and may reenter only after the 15 inspection is complete (unless the Parties agree otherwise). 16 The Court however is sensitive to the fact that Plaintiffs’ shoes are one-of-a-kind evidence 17 unique to each named Plaintiff. To address Plaintiffs’ concerns regarding evidence preservation 18 for these shoes in particular, the Court ORDERS Defendant to retain and bring a videographer (at 19 Defendant’s cost) to videotape (but not audio record) the inspection so that there will be a visual 20 record of the inspection. Defendant shall provide a copy of this Order to any such videographer 21 and shall coordinate with Plaintiffs in the set-up, lighting, width, and shot angle for the video 22 camera in the inspection room so that the videographer’s camera captures a reliable visual record 23 of what happens to the shoes during the inspection. The Parties agreed that the inspection 24 contemplated is not destructive of the shoes and consists basically of photographing and taking 25 measurements of various features of the shoes using some form of a 3D modelling tool (and 26 perhaps 2D measuring of various dimensions). As instructed at the hearing, Defendant’s counsel 27 shall ensure that only non-destructive measuring, inspecting, and photographing takes place during 1 disconnect/mute the microphones and not record any conversations or audio which takes place 2 during the inspection, and attest that they did so after the inspection is completed. In this way, the 3 Court seeks to ensure that Defendant’s concerns about privileged conversations are addressed. 4 Defendant’s counsel is entitled to watch a sample playback of the video recording to make sure no 5 audio is recorded. 6 If, after the inspection is complete and Plaintiffs’ shoes are returned to Plaintiffs’ 7 possession, Plaintiffs’ counsel in good faith reasonably believes that the shoes suffered physical 8 damage, destruction, and/or material alteration while in Defendant’s custody and control during 9 the inspection, Plaintiffs’ counsel may request a meet and confer with Defendant’s counsel 10 regarding the issue and then demand production of the video recording of the inspection to 11 confirm whether or not any physical destruction or alteration of the shoes took place at the hands 12 of Defendants’ inspection team during the inspection. The Court instructed the Parties at the 13 hearing to take all reasonable, cooperative steps to minimize the risk that any such dispute will 14 occur. 15 IV. Plaintiff Valentine’s Receipts 16 The Parties’ fourth dispute concerns Defendant’s request for production of “[a]ll receipts 17 for any Crocs Shoes purchased and/or used by [Plaintiffs] during the class period.” [Dkt. 75 at 3- 18 4]. Defendant complains that “Plaintiff Valentine’s receipt from her eBay purchase of Crocs 19 shoes is blurry and cut-off, and does not identify the seller.” Id. Defendant asks the Court to 20 order Plaintiff Valentine “to produce all receipts from her purchase, which should be able to be 21 located from her email, showing the identity of her eBay seller and the information on her 22 purchased shoes.” Id. at 4. 23 As to this issue, Plaintiffs argue that “Plaintiff Valentine has already conducted an email 24 search for relevant documents to this case” and produced “the receipt[] available to [her],” which 25 identifies the eBay seller by the user/account name of “botterboynova.” Id. Plaintiffs state that 26 they “are happy to reproduce” Plaintiff Valentine’s purchase receipt to the extent that the 27 document is “blurry.” Id. 1 reproduce a non-blurry copy of Plaintiff Valentine’s eBay receipt by no later than May 10, 2024. 2 At the May 3rd hearing, it became evident that Plaintiffs’ counsel relied solely on Plaintiff 3 Valentine herself to search her own emails for the requested receipt. It is undisputed that no 4 records from Plaintiff Valentine’s eBay account were produced (and they appear not to have been 5 searched). Given the limited nature of what is requested, Plaintiffs’ counsel’s reliance on a non- 6 lawyer to conduct an unsupervised search for responsive emails and eBay account records is 7 inadequate in the circumstances here, and particularly in light of Defendant’s raising of these 8 issues during the meet and confers. See Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., 16-cv- 9 06370-EJD (VKD), 2020 WL 2838806 at *5-6 (N.D. Cal. June 1, 2020) (“The Court does not 10 conclude that counsel must always personally conduct or directly supervise a client's collection, 11 review, and production of responsive documents. However, in the circumstances presented here, 12 the Court finds that [counsel] Sheppard Mullin did not make a reasonable effort to ensure that [its 13 client] Ningbo Sunny produced all the documents responsive to [opposing party] Orion's requests 14 and thus violated its obligations under Rule 26(g)(1)(B)”). Further, the burden of searching 15 Plaintiff Valentine’s email account and eBay account is minimal because Plaintiffs’ counsel 16 knows the date of the purchase and the name of the eBay seller, and accordingly, the request is 17 proportional as well to the needs of the case. Accordingly, Plaintiffs’ counsel themselves are 18 ORDERED to search promptly both Plaintiff Valentine’s email account and Plaintiff Valentine’s 19 eBay account for all emails, communications, receipts, payment and shipping records or 20 confirmations, and any other electronic records of the transaction between Plaintiff Valentine and 21 the eBay seller regarding the purchase and shipment/receipt of her Crocs shoes at issue in this 22 case. Plaintiffs’ counsel shall produce all emails, records, and electronic documents found after 23 such search by no later than five business days in advance of Plaintiff Valentine’s deposition date. 24 The Parties shall report the status of this issue in their Joint Status Report due May 13, 2024. 25 V. Depositions of the Named Plaintiffs 26 The Parties’ fifth dispute concerns Defendant’s request to take Plaintiffs’ “live depositions 27 in San Francisco, where they brought this lawsuit.” [Dkt. 75 at 4-5]. Defendant complains that 1 be available to schedule any deposition—live or video—before the end of class discovery.” Id. at 2 4. The Parties have apparently agreed on a tentative deposition date for Plaintiff Avino (May 14, 3 2024) but not as to Plaintiff Valentine. Id. at 4-5. Defendant asks the Court to approve the 4 deposition date for Plaintiff Avino and to compel Plaintiffs’ counsel to specify a date in May 2024 5 for Plaintiff Valentine’s deposition. Id. Defendant also requests that Plaintiff Valentine “be 6 Ordered to appear for her deposition in person in San Francisco (where she resides) unless she 7 provides Crocs with evidence that she will be out of the country through May 24.” Id. at 5. 8 Both in the briefing and at the May 3rd hearing, Plaintiffs argued that there is no actual 9 dispute on these issues and that the Parties are merely involved in discussing the final logistics and 10 scheduling of these depositions. At the May 3rd hearing, it became apparent that Defendant 11 insisted that Plaintiff Valentine be deposed in person in San Francisco, despite the representation 12 from Plaintiffs’ counsel that she is travelling out of the country throughout the month of May and 13 counsel’s offer for her to be deposed by Zoom videoconference. Again, the Court is disappointed 14 that the Parties were unable to reasonably cooperate and discuss these kinds of issues and required 15 the Court to rule on what amount to scheduling disputes. 16 a. Depositions of Named Plaintiffs Avino and Cornejo 17 To the extent that the Parties have agreed on locations and dates for the depositions of 18 Plaintiffs Avino and Cornejo, the Court ORDERS the Parties to comply with their agreement. At 19 the risk of repetition, the Court admonishes the Parties yet again to work more diligently on 20 cooperating in discovery consistent with the Court’s instructions provided months ago in this case. 21 b. Deposition of Named Plaintiff Valentine 22 Plaintiffs’ counsel shall provide to Defendant’s counsel promptly a sworn declaration 23 under penalty of perjury under the laws of the United States and the State of California executed 24 by Plaintiff Valentine by no later than 5 p.m. (PT) on May 10, 2024 attesting that she will remain 25 outside of the United States during all of May 2024, and further identifying all the dates she is 26 travelling outside of the country in May and June. If such a declaration is provided by the 27 deadline, then the Court ORDERS that Plaintiff Valentine shall make herself available for 1 between the Parties by no later than May 29, 2024 (and to be taken during normal daytime 2 business hours in the foreign location where Plaintiff Valentine is located, or at any other time of 3 day as agreed upon by the Parties). If no such declaration is served by the May 10 deadline, the 4 Court ORDERS that Plaintiff Valentine shall present herself for an in-person deposition in San 5 Francisco during at least the final week of May 2024. By no later than May 10, 2024, Plaintiffs 6 shall provide all dates Plaintiff Valentine is available to be deposed through May 29, 2024 (and 7 indicate whether she is available in-person or by Zoom on each such available date), excluding 8 May 10, 2024 and May 14, 2024. Defendants shall notice Plaintiff Valentine’s deposition 9 promptly thereafter, and the Parties shall cooperate diligently to ensure that the deposition is 10 completed by May 29, 2024 at the latest. The Parties are ORDERED to cooperate diligently and 11 reasonably on arranging promptly the logistics (whether in-person or by Zoom), timing, and 12 scheduling of Plaintiff Valentine’s deposition consistent with this Order. 13 c. Plaintiff Valentine’s Shoes 14 At the May 3rd hearing, in connection with Plaintiff Valentine’s deposition and the dispute 15 concerning inspection of shoes, the Parties reported a dispute that they did not expressly brief to 16 the Court in the Joint Discovery Letters, concerning the present status and location of Plaintiff 17 Valentine’s shoes. Defendants argued that they have asked for and been unable to receive any 18 concrete information from Plaintiffs on the delivery for inspection of Plaintiff Valentine’s Crocs 19 shoes at issue in this case. 20 Plaintiffs’ counsel informed the Court that they believe Plaintiff Valentine’s Crocs shoes 21 (which are the basis for her claims in this case) are in Plaintiff Valentine’s apartment in San 22 Francisco, but counsel indicated they are unable to obtain those shoes because Plaintiff Valentine 23 has been and is presently travelling outside of the country at least through the entire month of May 24 2024, as discussed above. 25 Plaintiff Valentine has had notice of the request for her shoes, as has her counsel, for 26 months, and the Court is not persuaded that there has been good cause for the delay in obtaining 27 those shoes. Given Plaintiffs’ counsel’s concerns about the named Plaintiffs’ shoes being one-of- 1 shoes thus far is inconsistent with Plaintiffs’ counsels arguments about the value of that alleged 2 one-of-a-kind evidence and thus undermines the credibility of any such arguments. If Plaintiff 3 Valentine is and has been on an extended overseas trip, it is likely that someone (a family member, 4 landlord, or friend) has a key or ability to access her apartment. The fact that Plaintiffs’ counsel 5 has not investigated how to get into the apartment even as late as the May 3rd hearing 6 demonstrates an unexplained and credibility-undermining lack of diligence. 7 As discussed at the May 3rd hearing, the Court ORDERS Plaintiffs’ counsel to promptly 8 communicate with Plaintiff Valentine (or any of her family members or others who may have 9 access to the apartment) to determine whether there is any individual with the ability to access 10 Plaintiff Valentine’s apartment who can locate and obtain the shoes at issue (or provide that access 11 to Plaintiffs’ counsel). The Parties shall report on the status of this issue in their Joint Status 12 Report due May 13, 2024. 13 VI. Marketing Materials 14 The Parties’ next dispute concerns Plaintiffs’ request for Crocs’ marketing materials. [Dkt. 15 79 at 1-3]. Plaintiffs argue that “marketing materials are now plainly relevant to this case,” in 16 light of the Court’s April 8, 2024 Order denying Defendants’ renewed motion to dismiss and 17 allowing Plaintiffs’ false advertising claims to proceed. Id. at 1; see Dkt. 71. Plaintiffs argue that 18 the discovery sought is proportional to the needs of the case, because the Court’s April 8, 2024 19 Order “also expanded the case to include all Crocs shoes made of 90% or more Croslite.” [Dkt. 20 79 at 1]. Plaintiffs argue that Defendant’s production of marketing materials thus far is deficient, 21 because the Parties’ ESI search terms “were negotiated prior to the Court’s recent opinion,” and 22 because the search terms were run solely on emails even though “Crocs’ practice was to send 23 various reports via hyperlinks, not as attachments.” Id. 24 Defendant argues that Plaintiffs’ request for additional marketing materials is 25 “unreasonably cumulative and duplicative,” stressing that they have already produced nearly 26 “80,000 pages of documents and spreadsheets” in this litigation. Id. at 2. While amenable to 27 conducting “a reasonable search for specific hyperlinked documents,” Defendant argues that it 1 hyperlinks” or to “conduct[] searches prior to class certification” for additional materials. Id. at 2- 2 3. 3 At the May 3rd hearing, the dispute here centered on certain marketing reports from certain 4 third-party vendors: (1) (which apparently merged recently with another vendor named 5 ); and (2) . It is undisputed that Defendant received regular quarterly marketing 6 reports from some or all of these vendors (in particular, ) but has not produced 7 them. Given the targeted nature of the request, the Court finds that the request for Defendant to 8 search for and produce these specific third-party reports (covering the purported class period) is 9 proportional. The fact that Defendant’s ESI has resulted in the production of at least one 10 document referencing or summarizing some data also supports the Court’s finding that 11 these reports are relevant for purposes of discovery. The Court recognizes that the Parties retain 12 their arguments regarding the weight and impact of these reports for purposes of the class 13 certification issues. The issue the Court resolves herein is whether these reports are discoverable, 14 not their ultimate relevance or the weight of such evidence. 15 Accordingly, as stated at the May 3rd hearing, the Court ORDERS Defendant to produce 16 one copy of each and every quarterly (or monthly or annual or biannual) market report received by 17 Defendant from third-party vendors including for the 18 putative class period (to the extent such materials have not already been produced) by no later than 19 May 17, 2024. 20 At the May 3rd hearing, the only remaining dispute regarding marketing documents related 21 to the so-called “Category Playbook” materials. The Parties appear to have insufficiently met and 22 conferred over whether there remains a dispute as to this issue, because the Parties were unable to 23 inform the Court as to whether this is a regularly created/produced document or not, whether this 24 document comes from a third party, and whether there even exist any other materials or documents 25 related to the one document apparently produced. Accordingly, the Court further ORDERS the 26 Parties to promptly meet and confer on this dispute. The Parties shall advise the Court as to the 27 status of these issues in their Joint Status Report due May 13, 2024. 1 VII. Customer Complaints Regarding “Small Size” 2 The Parties’ next dispute concerns Plaintiffs’ request for Crocs’ customer complaints 3 regarding “small size” of Crocs shoes. [Dkt. 79 at 3-4]. Plaintiffs argue that Defendant’s 4 previously produced a spreadsheet of customer complaints regarding shrinkage but that 5 spreadsheet “does not include complaints about small size, which is a top complaint.” Id. at 3. 6 Plaintiffs argue that complaints about “small size” of shoes are, in fact, the result of shrinkage and 7 thus are likely evidence of additional complaints about their shoes’ shrinkage (even if the 8 complaints do not expressly refer to shrinkage). Id. Plaintiffs argue that discovery into customer 9 complaints regarding small size will enable them to directly rebut Defendant’s assertion “that 10 complaints about shrinkage represent a small percentage of overall complaints.” Id. 11 Defendant argues that the common cause for complaints about “small size” of Crocs shoes 12 are the result of the fact that Crocs does not offer shoes in half-sizes, which is unrelated to 13 shrinkage. Defendant thus argues that this request is both overbroad, and that the burden of 14 having to search for and compile yet another spreadsheet of complaints is not justified. 15 As stated at the May 3rd hearing, the Court DENIES Plaintiffs’ request to require 16 Defendant to produce a spreadsheet of all the data relating to all additional customer complaints 17 which use the phrase “small size.” As discussed at the hearing, searching for such data entails 18 burdens which, when viewed in the context of other discovery already produced, are not 19 sufficiently rebutted, and the request is not proportional to the needs of the case. 20 At the May 3rd hearing, Plaintiffs suggested that their concerns about their ability to rebut 21 Defendant’s assertions about the nature of complaints could be addressed if they receive simply 22 the number of complaints about “small size” as opposed to all the data underlying each such 23 complaint. Because this narrowed request addresses the concerns as to proportionality and 24 because merely obtaining a “hit count” search entails relatively minimal burden on Defendant, the 25 Court ORDERS Defendant to run a search in their database for complaints which contain the 26 search term “small size” and provide Plaintiffs with a “hit count” identifying the total number of 27 customer complaints resulting from such search by no later than May 10, 2024. 1 VIII. Documents Relating to Product Use 2 The Parties’ eighth dispute concerns Plaintiffs’ request for documents relating to “how 3 consumers use [Crocs] products, and whether consumers use [Crocs] shoes in hot and sunny 4 environments.” [Dkt. 79 at 4]. Defendant argues that Crocs has already produced all responsive 5 documents relating to marketing materials (a number of which already apparently address the 6 issue here) and deny the existence of any “internal consumer data relating to how consumers are 7 using the shoes.” Id. 8 The Court DENIES Plaintiffs’ request for an order requiring Defendant to perform a 9 further search for and produce additional documents regarding how customers use Crocs products. 10 Given the negotiated and agreed upon ESI search terms and the number of documents already 11 produced, Plaintiffs’ request is not proportional to the needs of the case. “[P]erfection in ESI 12 discovery is not required; rather a producing party must take reasonable steps to identify and 13 produce relevant documents.” Alivecor, Inc. v. Apple, Inc., No. 21-cv-03958-JSW, 2023 WL 14 2224431, at *2 (N.D. Cal. Feb. 23, 2023) (citing Reinsdorf v. Skechers U.S.A, Inc., 296 F.R.D. 15 604, 615 (C.D. Cal. 2013) (“[W]hile parties must impose a reasonable construction on discovery 16 requests and conduct a reasonable search when responding to the requests, the Federal Rules do 17 not demand perfection.”)). 18 IX. Mold Drawings 19 The Parties’ ninth dispute concerns Plaintiffs’ request for mold drawings of each model of 20 Crocs shoe. [Dkt. 79 at 4-5]. Plaintiffs argue that they need “an exemplar of mold drawing of 21 each model of shoe” to be able to “rebut any contentions that the shoes did not shrink.” Id. at 4. 22 Defendant argues that Plaintiffs’ request for mold drawings is “premature” at best, stressing that 23 Crocs’ mold drawings “fit squarely within the definition of a trade secret.” Id. at 5. 24 As an initial matter, to the extent that Defendant raised concerns regarding trade secrets, 25 the Court notes that there is a Protective Order governing discovery in this case which directly 26 addresses trade secret issues and confidentiality. See Dkt. 28. The Court therefore overrules and 27 rejects Defendant’s arguments on this basis as moot and not well-founded. 1 schematics for Crocs shoes used at the factory. While Defendant argued that Plaintiff can simply 2 purchase and measure all the dimensions of any Crocs shoe available on the market, according to 3 Plaintiffs’ counsel the mold drawings indicate dimensions 4 . 5 Further, the mold drawings appear to provide more dimensions for different features and locations 6 on the shoes than the documents produced to date, and thus are not duplicative. At the hearing, 7 Plaintiffs again limited their request to one exemplar mold drawing. The Court finds that the 8 request as narrowed is proportional to the needs of the case. 9 As stated at the May 3rd hearing, the Court ORDERS Defendant to produce promptly one 10 exemplar mold drawing for at least the Classic Clog and the Bae as made and sold during the 11 putative class period. Defendant shall also identify to Plaintiffs’ counsel the commercial software 12 needed to access the mold drawings, assuming the mold drawings are produced in electronic 13 format from a CAD/CAM system. After Plaintiff reviews the mold drawings, if Plaintiff identifies 14 a reasonable basis for requesting additional mold drawings for identified models/styles of Crocs 15 shoes at issue, the Court ORDERS the Parties to meet and confer on reaching agreement for 16 production of a reasonable number of additional mold drawings for specific identified models of 17 Crocs shoes at issue in this case, including discussion of whether the Parties can reach agreement 18 on whether any model is representative of all (or at least some of) the other models of Crocs shoes 19 at issue in this case for purposes of discussions concerning dimensions, measurements, and 20 features of the shoes (or any other purposes the Parties may agree upon). 21 The Parties shall advise the Court as to the status of these issues in their Joint Status Report 22 due May 13, 2024. 23 X. Marco Piano Deposition 24 The Parties’ final dispute concerns Plaintiffs’ request to depose one of Crocs’ employees, 25 Marco Piano. [Dkt. 79 at 5]. At the May 3rd hearing, Plaintiffs confirmed that they wish to 26 depose Mr. Piano as a fact witness (not a Rule 30(b)(6) witness). Plaintiffs confirmed their 27 willingness to depose Mr. Piano via Zoom videoconference given that Mr. Piano works and 1 Mr. Piano’s deposition (at Plaintiffs’ expense). 2 Defendant’s arguments appear to based on an assumption that Plaintiffs are seeking to 3 force Defendant to designate Mr. Piano as an addition Rule 30(b)(6) witness. Had the Parties been 4 more forthcoming in their positions during the meet and confers, this entire dispute could have 5 been avoided. 6 As stated at the May 3rd hearing, the Court ORDERS the Parties to promptly meet and 7 confer for purposes of setting a date during the last week of May for Mr. Piano’s deposition to be 8 taken via Zoom videoconference. At the hearing, Defendant’s counsel suggested that the specific 9 information Plaintiffs seek from Mr. Piano’s deposition may be more readily provided by 10 supplemental interrogatory responses. To the extent that the Parties are able to obviate the need 11 for this deposition or to reduce the time needed for this deposition, the Court further ORDERS the 12 Parties to promptly meet and confer on this issue. 13 The Parties are ORDERED to cooperate diligently and reasonably on arranging promptly 14 the Zoom logistics, timing, and scheduling of Mr. Piano’s deposition consistent with this Order. 15 The Parties shall report to the Court as to the status of Mr. Piano’s deposition in their Joint Status 16 Report due May 13, 2024. 17 CONCLUSION 18 Many of the disputes raised in the instant Discovery Letter Briefs [Dkts. 70, 75, and 79] 19 and resolved herein are issues which the Court expects able and experienced counsel to be capable 20 of resolving through negotiation without the need for Court intervention. The Court is 21 disappointed that there was evidently insufficient communication between counsel during the 22 mandatory meet and confers, given the uncertainty as to facts on several of the disputes and 23 proposals raised for the first time at the May 3rd hearing. If the Parties continue to demonstrate 24 inability to resolve discovery disputes in a reasonable manner consistent with Federal Rules of 25 Civil Procedure 1 and 26 (as well as this Court’s Orders), the Court will consider imposing 26 additional meet and confer procedures for future discovery disputes, including but not limited to 27 requiring any counsel directly involved in any of the meet and confers to meet and confer in ] geographic proximity, requiring meet and confers to take place in person at the San Francisco 2 || courthouse, requiring in-house counsel or Party representatives (or Parties themselves, if any are 3 || natural persons) to attend all meet and confers, and/or the imposition of appropriate sanctions 4 || (including monetary sanctions) for failure to adequately and reasonably meet and confer. 5 The disputes raised by the Joint Discovery Letters [Dkts. 70, 75, 79] and the new disputes 6 || raised at the May 3rd hearing are RESOLVED as either ordered herein or withdrawn as discussed 7 || herein. 8 9 || ITIS SO ORDERED. 10 || Dated: May 8, 2024 1] PETER H. KANG 12 United States Magistrate Judge

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