Wang v. Zymergen Inc.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BIAO WANG, Case No. 21-cv-06028-PCP (SVK)

8 Plaintiff, ORDER ON DISCOVERY DISPUTE RE 9 v. UNDERWRITER DEFENDANTS' INTERROGATORY RESPONSE 10 ZYMERGEN INC., et al., Re: Dkt. No. 221 11 Defendants.

12 Before the Court is the Joint Submission of Plaintiff and Underwriter Defendants 13 (“UWDs”) pursuant to which Plaintiff seeks a more complete response to a contention 14 interrogatory, specifically Interrogatory No. 2. Dkt. 221. The Court has reviewed the submission 15 as well as the relevant law and litigation history and determines that this dispute may be resolved 16 without a hearing. L.R. 7-1(b). 17 Interrogatory No. 2 requests: 18 As specified by your Tenth Defense in your Answer, identify each “persons and/or entities” upon which you relied and, for each person or entity, the relevant “work, opinion, 19 information, representations, reports, [or] advice” upon which you relied. 20 Dkt. 221-1. UWDs’ Tenth Defense is “Reasonable Reliance,” which provides in relevant part: 21 The Underwriter Defendants relied in good faith on the work, opinion, information, 22 representations, reports, and advice of other persons and/or entities on which the 23 Underwriter Defendants were entitled to rely. 24 Dkt. 221, fn. 2. 25 In response to Interrogatory No. 2, UWDs identified 15 entities, comprising law firms and 26 other corporate entities. No other information is provided. Plaintiff complains that the response is 27 1 well as the specific opinions or advice relied upon. Plaintiff points to the close of fact discovery 2 on March 28, 2024 and the need to have sufficient time to conduct discovery from these third 3 parties. UWDs assert that it is too early in the litigation for a contention interrogatory, noting that 4 at the time of the Joint Submission (November 14, 2023), they had not yet completed their 5 document production but would do so by November 30. UWDs also complain about the burden of 6 identifying the “information,” etc., upon which they relied. 7 The Court does not find UWDs objection that Interrogatory No. 2 is premature to be 8 persuasive. As of the date of this Order, document production must be substantially complete and, 9 significantly, fact discovery now closes in just over 90 days. Interrogatory No. 2 seeks 10 information regarding third parties whose “opinions,” “advice,” etc., form the basis for a defense 11 pled by UWDs. As such, discovery from these third parties is highly likely to be both relevant and 12 proportionate to the needs of the litigation, and conducting such discovery in 90 days will require 13 a prompt and focused effort by Plaintiff. 14 UWDs argument that identification of the material relied upon will be burdensome is also 15 not persuasive. As Plaintiff argues, the objective of the contention interrogatory is not to discern 16 all facts but to understand what UWDs will be relying on a trial. Former Shareholders 17 of Cardiospectra, Inc. v. Volcano Corp., 2013 WL 5513275, at *2 (N.D. Cal. Oct. 4, 2013) (The 18 purpose of the interrogatory is to “learn what the opposing party will argue at trial, rather than to 19 obtain facts.”) How will UWDs prove up the tenth affirmative defense at trial? Whatever 20 material answers that question must be identified in response to Interrogatory No. 2. 21 UWDs’ suggestion that the identified entities’ relevance to the Zymergen IPO is “self- 22 evident based on even a cursory review of the Defendants’ document productions” misses the 23 point of the contention interrogatory. While an entity’s role in the IPO may, at least theoretically, 24 be discernible from documents produced to date, Interrogatory No. 2 calls for, and UWDs are 25 obligated to provide, the identification of the specific material that the UWDs contend support 26 their reliance defense. On this note, should the UWDs have a good faith belief that they can 27 satisfy the strictures of Rule 33(d) and point to their document production in response to 1 Rule 33(d)(1). 2 UWDs’ argument that a complete answer to the contention interrogatory should follow 3 depositions also fails. It does not appear that depositions have been noticed, let alone dates certain 4 calendared. As noted above, the time to respond is now, to allow sufficient time to pursue 5 || discovery from the identified third parties. 6 Finally, regarding the identification of individuals at the identified entities, where it is the 7 || case that an UWD consistently interacted with a readily identifiable individual or group of 8 individuals, those persons must be identified. However, where the interactions were at a higher 9 || level or varied over time such that no one individual or group of individuals are readily 10 || identifiable, that level of identification is not proportional to the needs of the litigation and 11 therefore is not required. 12 SO ORDERED. 5 13 Dated: December 14, 2023 14 15 usm youl SUSAN VAN KEULEN = 16 United States Magistrate Judge = 17 18 19 20 21 22 23 24 25 26 27 28