Nuvasive, Inc. v. Alphatec Holdings, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NUVASIVE, INC., Case No.: 18-cv-0347-CAB-MDD 12 Plaintiff, ORDER ON JOINT MOTON FOR 13 v. DETERMINATION OF DISCOVERY DISPUTE 14 ALPHATEC HOLDINGS, INC., and REGARDING REQUESTS FOR ALPHATEC SPINE, INC., 15 PRODUCTION 81 AND 93 Defendants. 16 [ECF NO. 193] 17 18 Before the Court is the Joint Motion of the parties for determination of 19 a discovery dispute filed on October 19, 2018. (ECF No. 117). This is a 20 patent case and the joint motion presents Plaintiff’s motion to compel further 21 responses to two requests for production of documents from Defendants. 22 LEGAL STANDARD 23 The Federal Rules of Civil Procedure authorize parties to obtain 24 discovery of “any nonprivileged matter that is relevant to any party’s claim or 25 defense and proportional to the needs of the case....” Fed. R. Civ. P. 26(b)(1). 26 “Information within the scope of discovery need not be admissible in evidence 1 discovery where the discovery sought is “unreasonably cumulative or 2 duplicative, or can be obtained from some other source that is more 3 convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). 4 A party may request the production of any document within the scope of 5 Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the response 6 must either state that inspection and related activities will be permitted as 7 requested or state an objection to the request, including the reasons.” Rule 8 34(b)(2)(B). If the responding party chooses to produce responsive 9 information, rather than allow for inspection, the production must be 10 completed no later than the time specified in the request or another 11 reasonable time specified in the response. Id. An objection must state 12 whether any responsive materials are being withheld on the basis of that 13 objection. Rule 34(b)(2)(C). An objection to part of a request must specify the 14 part and permit inspection or production of the rest. Id. The responding 15 party is responsible for all items in “the responding party’s possession, 16 custody, or control.” Rule 34(a)(1). Actual possession, custody or control is 17 not required. Rather, “[a] party may be ordered to produce a document in the 18 possession of a non-party entity if that party has a legal right to obtain the 19 document or has control over the entity who is in possession of the 20 document.” Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995). 21 DISCUSSION 22 1. RFP No. 81 23 Plaintiff requests the production of “[d]ocuments sufficient to show, on a 24 monthly or quarterly basis from January 1, 2014 to present [Defendants’] size 25 and financial condition, including but not limited to assets, liabilities, and the 26 1 differences in their totals.” (ECF No. 193 at 7).1 In response, Defendants 2 produced several years of “comprehensive public financial statements 3 (namely Form 10-Ks, 10-Qs and 8-Ks), which are, of course, detailed, vetted 4 and submitted to the Securities and Exchange Commission.” (Id. at 11). 5 Defendants explain that each Form 10-K includes a comprehensive balance 6 sheet showing total assets, broken down by type; total liabilities broken down 7 by type; a breakdown of stockholders’ equity; revenue; gross profit; operating 8 expenses, broken down by category; operating loss; and cash flow. (Id.). 9 Defendants also assert that they have produced and are continuing to 10 produce, in response to an Interrogatory served by Plaintiff, detailed sales 11 data, including sales data and information regarding the accused products. 12 (Id. at 12). Defendants assert that they have complied with this request for 13 production. 14 Plaintiff asserts that the information supplied is insufficient. Plaintiff 15 wants Defendants to produce internal company documents including 16 “internal financial summaries, financial presentations such as board 17 presentations, financial strategy documents, etc.” (ECF No. 8). Plaintiff 18 asserts that these internal documents together with the public documents 19 paint the requested picture. (Id.). 20 The Court finds that Defendants production is a legally adequate 21 response to Plaintiff’s request for “documents sufficient to show . . . 22 Alphatec’s size and financial condition including . . . assets, liabilities, and 23 the differences in their totals.” The crux of the issue here is the use of the 24 phrase “sufficient to show.” By using the ambiguous phrase “sufficient to 25 26 1 The Court will refer to page numbers supplied by CM/ECF rather than original 1 show,” a disagreement over the extent of production was inevitable. The 2 Plaintiff does not have the right to insist on its interpretation of “sufficiency” 3 when it had the ability to request specific categories of financial documents. 4 No further response is required of Defendants. 5 2. RFP No. 93 6 Plaintiff requests Defendants to produce “[d]ocuments sufficient to show 7 Patrick Miles’ expense reports concerning the Accused Products, hospital- 8 customers for the Accused Products, and/or surgeon-customers for the 9 Accused Products.” (ECF No. 193 at 14). In addition to objections for 10 relevance, Defendants have responded that it has identified no expense 11 reports for Patrick Miles concerning the Accused Alphatec Components.” 12 (ECF No. 16). Presumably, then, the fight here is over expense reports for 13 Mr. Miles regarding hospital-customers and surgeon-customers that use the 14 Accused Products, a much broader scope than expense reports for Mr. Miles 15 that are related directly to the Accused Products. Plaintiff asserts that these 16 documents are relevant to issues of assignor-estoppel, induced or willful 17 infringement, lost profits and enhanced damages. Defendants assert that 18 there is no relevance of these expense reports to any claim or defense in the 19 case. 20 Defendants’ response fails to comply with Rule 34(b)(2)(C), Fed. R. Civ. 21 P., which provides that “[a]n objection must state whether any responsive 22 materials are being withheld on the basis of that objection.” Defendants 23 have not stated that there are documents they are withholding based upon 24 their objections. That failure must be remedied. Nonetheless, the Court is 25 not convinced that these expense reports are relevant; the arguments made 26 by Plaintiff suggest little more than a fishing expedition. 1 ||amended response to RFP No. 93 stating whether any responsive materials 2 ||are being withheld pursuant to their objection. 3 ||As stated by the Advisory Committee: 4 [T]he producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and 6 thereby facilitate an informed discussion of the objection. 7 Ped. R. Civ. P. 34, Advisory Committee Notes (2015 Amendment). No 8 || additional response is required. 9 CONCLUSION 10 As presented in this Joint Motion, Plaintiff's motion to compel further 11 responses to RFP Nos. 81 and 93 is DENIED. Defendants, however, must 12 || amend their response to RFP No. 98, within 14 days, to state whether 13 responsive documents have been withheld pursuant to their objection. 14 IT IS SO ORDERED: 15 |\Dated: September 12, 2019 member 1209 Mitel. Sow Le 17 Hon. Mitchell D. Dembin United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27