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Daimler AG v. A-Z Wheels, LLC

United States District Court, S.D. California

September 7, 2017

DAIMLER AG, a German corporation, Plaintiff,
v.
A-Z WHEELS, LLC d/b/a USARim.com, et al., Defendants.

          ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE [ECF NO. 39]

          Hon. Mitchell D. Dembin United States Magistrate Judge

         Before 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. (Id.).

         In 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).

         LEGAL STANDARD

         The 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).

         An 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).

         Similarly, 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).

         DISCUSSION

         A. Interrogatories 1, 2, 6, 9, 10, 11, 12, 13, 14, 19

         For 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.

         In 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.

         Consequently, 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.

         With regard to issues specific to certain interrogatories, the Court finds as follows:

         1. Interrogatory 1 ...


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