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Stone Brewing Co., LLC v. MillerCoors LLC

United States District Court, S.D. California

September 17, 2019

STONE BREWING CO., LLC, Plaintiff/Counterclaim Defendant,
v.
MILLERCOORS LLC, Defendant/Counterclaim Plaintiff.

          ORDER RE: STONE BREWING COMPANY LLC'S MOTION TO COMPEL AND FOR SANCTIONS FOR DISCOVERY VIOLATIONS [ECF NO. 218]

          HONORABLE LINDA LOPEZ UNITED STATES MAGISTRATE JUDGE

         Currently before the Court is Plaintiff Stone Brewing Co., LLC (“Stone” or “Plaintiff”) September 5, 2019 “Motion to Compel and for Sanctions for Discovery Violations” [ECF No. 218 (“Motion”)], Defendant's September 7, 2019 opposition to the motion [ECF No. 221 (“Oppo.”)], and Plaintiff's September 9, 2019 Reply [ECF No. 224 (“Reply”)].

         For the reasons set forth below, Plaintiff's Motion is GRANTED IN PART AND DENIED IN PART.

         I. RELEVANT DISCOVERY BACKGROUND

         On September 28, 2018, Plaintiff served Requests for Production of Documents (“RFP”) Set Two, Nos. 41 and 42, on Defendant seeking:

RFP No. 41: Representative samples of each and every form or type of collateral marketing material including but not limited to, print, radio, television, brochures, catalogues, flyers, press releases, website pages, website banners, social media posts, in-store displays, point-of-sale promotional items, that has displayed or that will display the Keystone Products, including documents sufficient to show every manner of presentation of Your Keystone Products in each type of advertisement or promotional material from 1989 to Present.
RFP No. 42: Representative samples of each type of design for the can and outer packaging of Your Keystone Products from 1989 to Present.

Motion at 6; see also Exhibit 1 attached to the Motion at 8. Defendant responded to RFP No. 41 as follows:

Response to RFP No. 41: MillerCoors incorporates by reference the General Responses and Objections as if fully set forth herein. In addition to the foregoing General Responses and Objections, MillerCoors objects to the phrases "[r]epresentative samples of each and every form or type of collateral marketing material," "that has displayed or that will display the Keystone Products," and "documents sufficient to show every manner of representation of Your Keystone Products in each type of advertisement or promotional material" as vague, overbroad, unduly burdensome, not reasonably calculated to lead to the discovery of documents relevant to either party's claims or defenses, and not "proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of discovery in resolving the issues, and whether the burden of the proposed discovery outweighs its likely benefit." Fed. R. Civ. Proc. 26(b)(1). MillerCoors also objects that the Request seeks documents going back twenty-nine years. MillerCoors further objects that the Request seeks the production of documents in the possession of, or which is the property of, a third party. MillerCoors further objects to this Request to the extent it seeks information or documents that are publicly available.
Subject to and without waiver of these Specific Objections and its General Objections, MillerCoors directs Plaintiff to MillerCoors' Answer and Counterclaims, and to the Declaration of Ashley Selman, and the exhibits referenced therein. MillerCoors will produce additional responsive, non-privileged documents, if any, capable of being identified and located following a reasonable search of relevant custodians and sources likely to contain such documents.

Motion at 6; see also Exhibit 2 attached to the Motion at 34-36. Defendant responded to RFP No. 42 as follows:

Response to RFP No. 42: MillerCoors incorporates by reference the General Responses and Objections as if fully set forth herein. In addition to the foregoing General Responses and Objections, MillerCoors objects to the phrase, "[r]epresentative samples of each type of design for the can and outer packaging of Your Keystone Products" as vague, overbroad, unduly burdensome, not reasonably calculated to lead to the discovery of documents relevant to either party's claims or defenses, and not "proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. Proc. 26(b)(1). MillerCoors also objects that the Request seeks documents going back twenty-nine years. MillerCoors further objects that the Request seeks the production of documents in the possession of, or which is the property of, a third party. MillerCoors further objects to this Request to the extent it seeks information or documents that are publicly available.
Subject to and without waiver of these Specific Objections and its General Objections, MillerCoors directs Plaintiff to MillerCoors' Answer and Counterclaims, and to the Declaration of Ashley Selman, and the exhibits referenced therein. MillerCoors will produce additional responsive, non-privileged documents, if any, capable of being identified and located following a reasonable search of relevant custodians and sources likely to contain such documents.

         II. PARTIES' POSITIONS

         A. Plaintiff's Position

         Plaintiff argues that “MillerCoors has withheld critical evidence in violation of its discovery agreements.” Mot. at 11. Specifically, Plaintiff argues that MillerCoors's “primary defense in this case is MillerCoors's claim to be the senior user of the Stone® mark.” Id. Plaintiff states that “[i]n support of that defense, MillerCoors produced every scrap of Keystone historical material that it could find in which it used the terms Stone [or] Stones. . . .” Id. (internal citations omitted). However, Plaintiff argues that “as MillerCoors's archivist, 30(b)(6) witness and putative expert on historical usage, and key summary judgment declarant [Ms. Heidi Harris] admitted, MillerCoors has withheld the remainder of ‘the historical packaging, packaging artwork, advertisements, or videos for Keystone' while producing ‘only the items that have the word ‘Stone' or ‘Stones.'” Id. (citing Exhibit 3 attached to the Motion, Harris 30(b)(6) Tr. at 12:16-20; 13:18-14:5; see also id. at 81:0-82:1). Plaintiff summarizes the history of its attempts to meet and confer with Defendant including Plaintiff's request for “a complete production of historical Keystone materials in accordance with the plain language of RFPs 41 and 42, rather than the selective production of materials bearing the words Stone [or] Stones.” Id. at 7 (internal citation omitted). Plaintiff acknowledges that on July 3, 2019, MillerCoors produced eighty documents, but states that “MillerCoors still had not made a full production of its historical materials, instead withholding those that do not refer to Stone or Stones.” Mot. at 8.

         Plaintiff states that the deficiencies in Defendant's production were confirmed at Ms. Harris's expert deposition and in conversations between counsel. Id. (citing Ex. 5, Harris Expert Tr. at 70:5-21). Specifically, Plaintiff states that during her deposition on July 25, 2019, Ms. Harris “confirmed that she had not collected ‘all of the Keystone material that [she] came across in the archives that did not use the word ‘Stone' or ‘Stones'' and that she ‘couldn't give [] an exact number' but that it was on the order of ‘a few-a hundred or so.'” Mot. at 9 (citing Ex. 5, Harris Expert Tr. at 67:3-70:21; see also id. at 104:21-105:15). Plaintiff states that after ...


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