United States District Court, S.D. California
ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY
DISPUTE [ECF NO. 39]
Mitchell D. Dembin United States Magistrate Judge
the Court is the Joint Motion of the parties to determine a
discovery dispute filed on August 22, 2017. (ECF No. 39). The
dispute challenges the responses by certain Defendants, the
“Moalemi Defendants, ” Rasool “Russ”
Moalemi, Joshua Moalemi and Ryan Moalemi, to ten
interrogatories and 21 requests for production.
summary, this case involves allegations that Defendants have
been in the business of obtaining and selling automotive
wheels, online and from a physical location, that violate
certain patents and trademarks belonging to Plaintiff.
(See ECF No. 33).
Federal Rules of Civil Procedure authorize parties to obtain
discovery of “any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case . . . .” Fed.R.Civ.P. 26(b)(1).
“Information within the scope of discovery need not be
admissible in evidence to be discoverable.”
Id. District courts have broad discretion to limit
discovery where the discovery sought is “unreasonably
cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less
expensive.” Fed.R.Civ.P. 26(b)(2)(C).
interrogatory may relate to any matter that may be inquired
under Rule 26(b). Fed.R.Civ.P. 33(a)(2). The responding party
must answer each interrogatory by stating the appropriate
objection(s) with specificity or, to the extent the
interrogatory is not objected to, by “answer[ing]
separately and fully in writing under oath.” Rule
33(b). The responding party has the option in certain
circumstances to answer an interrogatory by specifying
responsive records and making those records available to the
interrogating party. Rule 33(d).
a party may request the production of any document within the
scope of Rule 26(b). Fed.R.Civ.P. 34(a). “For each item
or category, the response must either state that inspection
and related activities will be permitted as requested or
state an objection to the request, including the
reasons.” Rule 34(b)(2)(B). If the responding party
chooses to produce responsive information, rather than allow
for inspection, the production must be completed no later
than the time specified in the request or another reasonable
time specified in the response. Id. An objection
must state whether any responsive materials are being
withheld on the basis of that objection. Rule 34(b)(2)(C). An
objection to part of a request must specify the part and
permit inspection or production of the rest. Id. The
responding party is responsible for all items in “the
responding party's possession, custody, or
control.” Rule 34(a)(1). Actual possession, custody or
control is not required. Rather, “[a] party may be
ordered to produce a document in the possession of a
non-party entity if that party has a legal right to obtain
the document or has control over the entity who is in
possession of the document.” Soto v. City of
Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995).
Interrogatories 1, 2, 6, 9, 10, 11, 12, 13, 14, 19
each of these interrogatories, an identical issue is
presented. Interrogatories 1 and 13 have additional issues
which will be discussed separately below. But, as to each
interrogatory, including 1 and 13, Defendants respond by
referring Plaintiff to the transcript of a deposition of
Defendant Russ Moalemi taken in connection with proceedings
before the U.S. International Trade Commission
(“ITC”) in November 2016. Defendants claim not to
have a copy of the transcript but assert that the answers
sought are there and are in Plaintiff's possession.
Plaintiff asserts these answers do not comply with the
requirements of Rule 33.
short, Plaintiff is correct. Plaintiff is entitled to a
“full answer.” Rule 33(b)(3). To the extent that
Defendants are attempting to avail themselves of the option
to provide business records provided at Rule 33(d), that rule
presupposes that the records are to be produced, or have been
produced, by the responding party and the responding party
must specify where in the responsive records the answers to
the interrogatory lies. The ITC deposition transcript
apparently is not a business record of Defendants and,
regardless, Defendants have not identified the location in
the transcript of the answers to each interrogatory.
to the extent Defendants rely on their reference to the Russ
Moalemi ITC deposition transcript, the Court finds the
answers inadequate and GRANTS Plaintiff's motion to
compel further responses.
regard to issues specific to certain interrogatories, the
Court finds as follows:
Interrogatory 1 ...