4WEB, Inc. v. NuVasive, Inc.

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 4WEB, INC. and 4WEB, LLC, Case No.: 24-cv-1021-JLS-MMP 11 Plaintiffs, ORDER SUA SPONTE AMENDING 12 v. AUGUST 4 ORDER; AND 13 NUVASIVE, INC., GRANTING MOTION TO COMPEL 14 Defendant. RFP 63 AS NARROWED BY THE COURT 15 16 17 On August 4, 2025, the Court denied 4WEB’s motion to compel NuVasive to 18 produce documents responsive to Request for Production (“RFP”) 63, which requests: 19 For the time period from January 1, 2012, to the present, Documents sufficient to show quarterly and monthly sales figures (including but not limited to: sales 20 revenue, unit sales, cost of goods sold, items considered in the calculation of 21 cost of goods, net sales, gross margin, net rebate, net profit before interest, depreciation, and amortization) for NuVasive’s spinal implants that are not 22 the Accused Products, including but not limited to NuVasive’s Cohere®, 23 Coalesce®, and CoRoent® product lines and any predecessors.

24 ECF No. 233 at 5–12. The Court found although 4WEB had demonstrated relevance for 25 purposes of discovery, the request was overly broad and not proportional. Id. at 9. The 26 Court found as written, the request sought expansive financial information including sales 27 revenue, unit sales, cost of goods sold, items considered in the calculation of cost of goods, 28 net sales, gross margin, net rebate, net profit before interest, depreciation, and amortization 1 for all NuVasive’s spinal implants other than the Accused Products. The Court further 2 noted while the request identified three product lines (the Cohere, Coalesce, and CoRoent), 3 RFP 63 is expressly not limited to these products; however, if it was limited to these 4 products, the Court would be inclined to find the request relevant and proportional. ECF 5 No. 233 at 10. 6 Since the parties’ briefing concerning this motion to compel, there have been 7 numerous developments in this case relevant to the Court’s ruling on proportionality as to 8 production of product-specific financial information, including as to the non-accused 9 products requested in RFP 63. The Court discusses these developments in detail in its 10 August 28, 2025 Order. ECF No. 264. Relevant here, NuVasive has produced a report 11 containing financial data on both the Accused Products and non-accused products (like the 12 Cohere) from the date of commercialization through the first fiscal quarter of 2022. Thus, 13 the report contains financial data responsive to RFP 63. ECF No. 186-3. NuVasive also 14 maintains a database of calculations, on an annual basis, for the standard cost of all its 15 manufactured products. ECF No. 264, 182-1 ¶ 6, 219 ¶ 4. In light of the significant 16 information gleaned regarding the financial data and databases available to NuVasive, the 17 Court finds providing product-specific information on its manufactured products, including 18 the non-accused products sought in RFP 63, is not as burdensome to NuVasive as the Court 19 previously understood. 20 Based on the information now known to the Court, the Court finds the benefit of the 21 financial data for the non-accused products to 4WEB’s damages theory outweighs the 22 alleged burden to NuVasive in providing financial data. Further, to account for the claimed 23 undue burden and proportionality considerations, the Court narrows the scope of the 24 request as set forth below. See Licea v. Beshay Foods, Inc., No. 19-cv-1565-JM-AHG, 25 2020 WL 1975059, at *1 (S.D. Cal. Apr. 23, 2020), 2020 WL 1975059, at *2 (recognizing 26 a district court may “expand, limit, or differ from the relief requested”). 27 / / 28 / / l Accordingly, the Court finds it appropriate to AMEND its August 4 Order as to RFP 2 || 63 as follows: 3 1. The Court GRANTS 4WEB’s motion to compel as to RFP 63. NuVasive must 4 || produce documents responsive to RFP 63 as follows: 5 For the time period from January 1, 2015, to the present, Documents sufficient 6 to show quarterly or yearly sales figures (including but not limited to: sales revenue, unit sales, cost of goods sold, items considered in the calculation of 7 cost of goods, net sales, gross margin, net rebate, net profit before interest, g depreciation, and amortization) for NuVasive’s spinal implants that are not the Accused Products, including but not limited to NuVasive’s Cohere®, 9 Coalesce®, and CoRoent® product lines and any predecessors. 10 || For the avoidance of any doubt, the Court ORDERS NuVasive must query the financial 11 ||databases in its possession, custody, or control to generate and produce all available 12 ||information that is responsive to RFP 63 as narrowed by the Court. 13 2. The Court FURTHER ORDERS NuvVasive to produce the following 14 || documents: 15 a. Documents sufficient to show the standard cost for all non-accused 16 spinal implants NuVasive contends are acceptable non-infringing 17 alternatives to the devices claimed in any of the Asserted Patents. 18 b. Profit and Loss Statements for all its non-accused spinal implants 19 NuVasive claims are acceptable non-infringing alternatives to the 20 devices claimed in any of the Asserted Patents. 21 c. Documents sufficient to show the average sales price for all non- 22 accused spinal implant NuVasive contends are an acceptable, non- 23 infringing alternative to the devices claimed in any of the Asserted 24 Patents. 25 IT IS SO ORDERED. 26 ||Dated: August 28, 2025 Wyble Mt. lotr” 07 HON. MICHELLE M. PETTIT United States Magistrate Judge 28