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Lights Out Holdings, LLC v. Nike, Inc.

United States District Court, S.D. California

July 31, 2015

LIGHTS OUT HOLDINGS, LLC, a California limited liability company; SHAWNE MERRIMAN, Plaintiffs,
v.
NIKE, INC., an Oregon corporation, Defendant.

ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE (Dkt. No. 70)

NITA L. STORMES, Magistrate Judge.

I. INTRODUCTION

Before the Court is the parties' Joint Motion for Determination of Discovery Dispute. (Dkt. No. 70.) Plaintiffs Lights Out Holdings, LLC ("LOH") and Shawne Merriman ("Merriman") request the Court to compel Defendant Nike, Inc. ("Nike") to produce further documents and information in response to certain discovery requests pertaining to allegedly unauthorized and counterfeit Nike football jerseys that use the Lights Out mark. For the reasons explained below, the Court GRANTS Plaintiffs' request to compel Nike to produce further documents and information responsive to discovery requests at issue, ORDERS the parties to meet and confer as specified herein.

II. RELEVANT FACTUAL BACKGROUND

Plaintiffs filed this action against Nike asserting claims for trademark infringement, federal and common law unfair competition, and false endorsement. Nike asserts counterclaims for declaratory judgment of non-infringement, declaratory judgment of invalidity and cancellation of the 212 Registration, declaratory judgment of abandonment, and also asserted a counterclaim for procurement of the Registration through false or fraudulent declaration or representation.

On April 29, 2015, LOH served Special Interrogatories Set Two to Nike. Plaintiffs also served Requests for Production Set Two to Nike ("Plaintiff's RFPs"). On May 1, 2015, Merriman served his Special Interrogatories Set Two to Nike.

On June 4, 2015, Nike served its responses to all three sets of discovery. In Nike's responses, Nike objected to producing documents and information in response to Plaintiffs' RFP Numbers 16, 19, 22 and 23, and LOH Interrogatory Number 14, which are the discovery requests presently at issue. These requests sought documents and information regarding allegedly unauthorized and counterfeit Nike football jerseys that use the Lights Out mark.[1]

On June 9, 2015, the parties met and conferred about Nike's responses, and the parties agreed to proceed with production on the discovery requests at issue despite Nike's belief that the requests are, inter alia, not reasonably calculated to lead to the discovery of admissible evidence. The parties again met and conferred on June 24, 2015, about the supplemental production and when Nike would produce it.

On July 1, 2015, Nike made its supplemental production. The production consisted of two documents - a settlement agreement and an investigative report. Nike also served a supplemental interrogatory response that referred to the documents it produced, per Federal Rule of Civil Procedure 33(d). On July 6, 2015, the parties again met and conferred to discuss Plaintiffs' perceived deficiencies in the supplemental production. Nike disagreed the production was deficient but offered to conduct additional searches for the documents. Plaintiffs responded that they planned to seek the Court's involvement in the dispute.

On July 10, 2015, the parties filed the present joint motion for determination of discovery dispute regarding Plaintiffs' RFP Numbers 16, 19, 22 and 23, and LOH's Interrogatory Number 14. (Dkt. No. 70.) Also on July 10, 2015, Nike served supplemental responses. Those supplemental responses reflected that, as demonstrated by its supplemental production, Nike had agreed to produce non-privileged documents responsive to the requests at issue.

III. DISCUSSION

a. Existence Of A Discovery Dispute

As an initial matter, the Court addresses the parties' arguments regarding whether a dispute about these discovery requests exists. Nike contends no dispute exists because it already agreed to conduct an additional search after Plaintiffs complained of the allegedly deficient production. (Dkt. No. 70, pp. 6-9). As such, Nike avers the Court should deny Plaintiffs' request. Plaintiffs contend a dispute over the discovery requests exists because they received an allegedly deficient production. They further contend that after approximately 30 days of meeting and conferring, it was apparent they would need the Court's involvement. (Id. at 5-6.)

The Court finds this discovery dispute appropriate for determination. It appears Plaintiffs brought this dispute before the Court so they could preserve their ability to contest Nike's allegedly deficient production within the time permitted. See Chambers Rule VI.C (requiring discovery disputes be brought within 45 days of the date of the event giving rise to the dispute.) ...


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