United States District Court, N.D. California
ORDER ON PLAINTIFF'S MOTION TO REOPEN DISCOVERY
AND ADMINISTRATIVE MOTION TO FILE UNDER SEAL Re: Dkt. Nos.
HAYWOOD S GILLIAM, JR. UNITED STATES DISTRICT JUDGE
filed a motion to reopen discovery to depose a Rule 30(b)(6)
witness regarding Defendant's sales of Prevagen to
California consumers. Dkt. No. 239 (“Mot.”).
Because Plaintiff fails to establish good cause to reopen
discovery, the Court DENIES Plaintiff's
dispute stems from Plaintiff's second motion in
limine, which the Court denied on the record at the
December 17, 2019 pretrial conference. Plaintiff's second
motion in limine sought to preclude Defendant from
contesting the dollar amount paid by Class Members for
Prevagen Products during the Class Period. See
generally Dkt. No. 199. Defendant argued that Plaintiff
was improperly trying to shift his burden to prove damages
onto Defendant. Dkt. No. 213 at 2. The Court agreed and
denied the motion, since Plaintiff has the burden of proving
damages at trial. Dkt. No. 244 at 8:1-9; see also Lambert
v. Nutraceutical Corp., 870 F.3d 1170, 1184 (9th Cir.
2017), rev'd and remanded on other grounds, 139
S.Ct. 710 (2019) (burden is on plaintiff to prove
“damages to a reasonable certainty on the basis of his
full refund model”).
also claimed that the figures it had provided to Plaintiff
were not “reasonable and accurate estimates of the
Class damages, ” because the figures represented
Defendant's sales to its own customers, which are
third-party retailers and wholesalers. Dkt. No. 213 at 2-3.
As such, Defendant would not stipulate to these figures as
the actual dollar amount paid by Class Members. Id.
at 3. At the pretrial conference, Plaintiff's counsel
claimed that Defendant had made misrepresentations about the
nature of the provided California sales figures and thus
requested that he be allowed to depose a Rule 30(b)(6)
witness regarding the figures. Dkt. No. 244 at 10:10- 12:9,
14:2-10. Defendant objected on the basis that Plaintiff could
have made this request during discovery. Id. at
resolve the newly-raised dispute, the Court directed
Plaintiff to file a motion with the specific relief sought
and supporting authority, now presently before the Court.
See id. at 16:20- 17:9.
Discovery Concerning California Sales Figures
2016, Plaintiff served interrogatories on Defendant, seeking
the following information regarding sales: (1) the number of
wholesale and retail units sold; (2) “net sales
attributable to Your Product in each of the Class
States”; (3) the “gross profit margin for Your
Product in each of the Class States”; (4) the average
“wholesale price, manufacturer suggested retail price,
[and] the average retail price for Your Product sold in each
of the Class States”; and (5)“the number of each
Product sold.” Dkt. No. 239-2, Ex. A at 10-13.
Defendant responded with boilerplate objections, and also
represented that it would produce documents “from which
[Plaintiff] may ascertain” some of the requested
information. With respect to the request for information on
net sales, Defendant responded that it would produce
documents “from which [Plaintiff] may ascertain the
gross sales revenue of each of [Defendant's] products on
an annual nationwide basis.” Id. at 11.
Defendant produced the “requested sales
information” on September 7, 2017, and supplemented the
“estimated California sales” information on
November 13, 2019. Dkt. No. 239-5, Ex. D; Dkt. No. 239-7, Ex.
October 13, 2017, in support of Defendant's opposition to
Plaintiff's motion for class certification, Mark Y.
Underwood, then President of Quincy, submitted a declaration
explaining the produced sales information. Dkt. No. 128-1,
Declaration of Mark Y. Underwood In Support Of
Defendant's Opposition to Plaintiff's Motion for
Class Certification (“Underwood Decl.”).
Specifically, Mr. Underwood explained that “the vast
majority of Quincy's sales are currently to third-party
retailers and distributors, and Quincy has no way of
identifying consumers who purchased Prevagen from those
retailers and distributors.” Id. ¶ 10.
According to Mr. Underwood, in 2015 and 2016, direct sales to
individual consumers constituted less than 20% of
Quincy's sales revenues, and before then, direct sales
constituted about half of all sales in California.
Id. In addition, Mr. Underwood made clear that the
sales information Defendant produced to Plaintiff on
September 7, 2017, “included direct and wholesale
sales, not retail sales as Plaintiff's Motion asserts.
Quincy does not have retail sales information for third-party
retailers.” Id. ¶ 11.
MOTION TO REOPEN DISCOVERY
Rule of Civil Procedure 16 provides that “[a] schedule
may be modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16. “Rule 16(b)'s
‘good cause' standard primarily considers the
diligence of the party seeking the amendment.”
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
609 (9th Cir.1992); see also Fed. R. Civ. P. 16
Advisory Committee's Notes (1983 amendment) (noting court
may modify schedule “if it cannot reasonably be met
despite the diligence of the party seeking the
extension”). Thus, “Rule 16(b)'s ‘good
cause' standard primarily considers the diligence of the
party seeking the amendment.” Id.; see
also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294
(9th Cir. 2000). Where the moving party has not been
diligent, the inquiry ends, and the motion should be denied.
Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087
(9th Cir. 2002); Johnson, 975 F.2d at 609. Whether
or not to reopen discovery is in the discretion of the
district court: the district court has “wide latitude
in controlling discovery.” United States v.
Reliance Ins. Co., 799 F.2d 1382, 1387 (9th Cir. 1986).