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Racies v. Quincy Bioscience, LLC

United States District Court, N.D. California

January 4, 2020

PHILLIP RACIES, Plaintiff,
v.
QUINCY BIOSCIENCE, LLC, Defendant.

          ORDER ON PLAINTIFF'S MOTION TO REOPEN DISCOVERY AND ADMINISTRATIVE MOTION TO FILE UNDER SEAL Re: Dkt. Nos. 238, 239

          HAYWOOD S GILLIAM, JR. UNITED STATES DISTRICT JUDGE

         Plaintiff 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 motion.

         I. BACKGROUND

         A. Procedural Background

         This 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”).

         Defendant 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 14:11-15:5.

         To 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.

         B. Discovery Concerning California Sales Figures

         In 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. F.

         On 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.

         II. MOTION TO REOPEN DISCOVERY

         A. Legal Standard

         Federal 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).

         B. ...


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