EAT RIGHT Foods, Ltd. v. Whole Foods Market, Inc.
EAT RIGHT Foods, Ltd. v. Whole Foods Market, Inc.
2015 WL 11233197 (W.D. Wash. 2015)
January 6, 2015

Martinez, Ricardo S.,  United States District Judge

General Objections
Possession Custody Control
Failure to Produce
Attorney-Client Privilege
Attorney Work-Product
Proportionality
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Summary
The Court granted Plaintiff's motion for production of ESI dated from January 1, 2009, to January 1, 2011, but noted that such production remains subject to the remaining objections advanced by Defendants.
Eat Right Foods, Ltd, Plaintiff,
v.
Whole Foods Market, Inc., et al., Defendants
CASE NO. C13-2174RSM
Signed January 06, 2015

Counsel

Mark P. Walters, Lawrence D. Graham, Lowe Graham Jones, Seattle, WA, for Plaintiff.
Christopher L. Graff, Jared E. Matthysse, Stephen P. Meleen, Pirkey Barber LLP, Austin, TX, Christopher W. Tompkins, Betts Patterson & Mines, Seattle, WA, for Defendants.
Martinez, Ricardo S., United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL

I. INTRODUCTION
*1 This matter comes before the Court on Plaintiff's renewed Motion to Compel Discovery. Dkt. #76. Plaintiff seeks certain sales information and electronically stored information dated between 2009 and 2011 from Defendants. Id. Defendants respond that the information sought is irrelevant, does not exist, or should not be compelled because it is beyond the agreed upon scope of electronic discovery. Dkt. #78. For the reasons set forth herein, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion.
II. BACKGROUND
This matter arises from allegations of trademark infringement, false designation of origin and unfair competition. Dkt. #16 at ¶¶ 34-43. Plaintiff alleges that it has used the trademark “EAT RIGHT” since 2001 and the trademark “EATRIGHT” since 2003. Id. at ¶ 19. Plaintiff further alleges that from 2004 to 2013, Defendants sold products produced by Plaintiff and sold under the trademark “EATRIGHT.” Id. at ¶ 30. Plaintiff alleges that Defendants have since sold and marketed products using a trademark confusingly similar to “EATRIGHT” without authorization by Plaintiff, in violation of federal trademark laws and Washington's Consumer Protection Act. Id. at ¶¶ 32-43.
III. DISCUSSION
A. Applicable Legal Standard
“Litigants ‘may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.’ ” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005) (quoting Fed. R. Civ. P. 26(b)(1)). “Relevant information for purposes of discovery is information ‘reasonably calculated to lead to the discovery of admissible evidence.’ ” Id. “District courts have broad discretion in determining relevancy for discovery purposes.” Id. (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). If requested discovery is not answered, the requesting party may move for an order compelling such discovery. Fed. R. Civ. P. 37(a)(1). “The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Cable & Computer Tech., Inc. v. Lockheed Sanders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997).
B. Prepared Food Sales Information
Plaintiff first seeks an Order compelling Defendants' financial information including revenues, costs and profits for the sale of prepared foods, as requested in Interrogatory Nos. 2 and 3. Dkt. #76 at 1-4. Plaintiff argues that this information is relevant because it has accused Defendants of trademark infringement through the placement of signs bearing the trademark EATRIGHT in numerous locations throughout its stores, including on individual bins for its prepared foods. Dkt. #79 at 1. Plaintiff's Interrogatory Nos. 2 and 3 and the responses thereto read as follows:
INTERROGATORY NO. 2:
State the dollar amount for total sales on a monthly and annual basis for all products identified in response to Interrogatory No. 1.
RESPONSE:
Subject to Defendants' General Objections, Defendants respond as follows:
*2 None. (As noted in response to Defendants' Response to Interrogatory No. 1, Defendants did not sell food products “in connection with” Nutritional Excellence's EAT RIGHT AMERICA mark at Whole Foods Market stores).
Dkt. #77, Ex. 1.
INTERROGATORY NO. 3:
Identify all elements of costs or deductions claimed under 15 U.S.C. § 1117(a) including all facts and documents supporting the claimed deductions.
RESPONSE:
Defendants object that this interrogatory is premature at this stage of the case. Defendants further object that this interrogatory exceeds the permissible scope of discovery and requires a legal conclusion. Subject to these objections, as well as Defendants' General Objections, Defendants respond as follows:
Pursuant to Federal Rule of Civil Procedure 33(d), Defendants will produce copies of any relevant, non-privileged documents within their possession, custody or control that they determine contain the requested information.
The Court finds that Defendants' responses are adequate based on the information provided to the Court at this time, particularly because Plaintiff has failed to provide the Court with a copy of Interrogatory No. 1 and its response or objections thereto. See Dkt. #77, Ex. 1. Based on the parties' briefing, it appears that Defendants did not identify particular prepared food products in response to Interrogatory No. 1, and instead asserted objections. Plaintiff has not moved to compel any further response to Interrogatory No. 1. Accordingly, the Court will not compel any further response to Interrogatory No. 2. Further, Plaintiff fails to address the scope of the objections contained in response to Interrogatory No. 3. Therefore, the Court will not compel any further response to Interrogatory No. 3.
C. Electronic Documents Between 2009 and 2011
Plaintiff next seeks electronically stored information dated between January 1, 2009, and January 1, 2011. Dkt. #76 at 4-10. Specifically, they seek such information in response to Request for Production Nos. 9, 23 and 28. Id. These requests and the responses thereto read as follows:
REQUEST NO. 9:
All documents referring or relating to the decision to enter into the EATRIGHT AMERICA Agreement.
RESPONSE TO REQUEST NO. 9:
Defendants object that this request for “[a]ll documents” is overly broad and unduly burdensome. See FED. R. CIV. P. 26(b)(2)(C). Defendants further object on the grounds that the phrase “decision to enter into” is vague and ambiguous. Defendants further object to the extent that this request calls for documents protected by the attorney-client communication privilege and/or the attorney work-product doctrine. Defendants further object to the extent this request calls for trade-secret information or other confidential research, development, or commercial information. Subject to the foregoing objections, as well as Defendants' General Objections, Defendants will produce responsive, non-privileged documents within their possession, custody or control.
REQUEST NO. 23:
All documents referring or relating to U.S. Trademark Opposition No. 91202219.
RESPONSE TO REQUEST NO. 23:
Defendants object that this request for “[a]ll documents” is overly broad and unduly burdensome. See FED. R. CIV. P. 26(b)(2)(C). Defendants further object to the extent that this request calls for documents protected by the attorney-client communication privilege and/or the attorney work-product doctrine. Defendants further object to the extent this request calls for documents in the possession or control of the Plaintiff. Subject to the foregoing objections, as well as Defendants' General Objections, Defendants will produce responsive, non-privileged documents within their possession, custody or control.
*3 REQUEST NO. 28:
All communications between any officer, employee, or representative of Whole Foods and any officer, employee, or representative of Nutritional Excellence, referring or relating to plaintiff, the trade mark EATRIGHT, or U.S. Trademark Opposition No. 91202219 between plaintiff and Nutritional Excellence and Kevin Leville.
RESPONSE TO REQUEST NO. 28:
Defendants object that this request for “[a]ll documents” is overly broad and unduly burdensome. See FED. R. CIV. P. 26(b)(2)(C). Defendants further object on the grounds that the wording “Whole Foods” is undefined. Subject to the foregoing objections, as well as Defendants' General Objections, Defendants will produce responsive, non-privileged documents within their possession, custody or control only regarding such communications between Defendants and Nutritional Excellence.
Dkt. #77, Ex. 2.
The argument pertaining to these documents is centered on the parties' agreement pertaining to the discovery of electronically stored information (“ESI”). Defendants argue that Plaintiff agreed to limit the discovery of ESI from January 1, 2011, to December 31, 2013, and that they have produced responsive documents in that date range. Plaintiffs respond that they did not appreciate that narrowing the initial search for documents to that date range would preclude discovery of any documents prior to those dates.
The Court has reviewed the parties' ESI Agreement. Dkt. #40. In that agreement, the parties agreed to limit discovery of ESI from January 1, 2009, to the present. Id. at 4. The parties also agreed that should additional search terms become necessary, or should results from electronic searches exceed a certain capacity, they would meet and confer regarding those issues. Id. at 4-5. The parties apparently met and conferred regarding the volume of results from initial searches, and agreed to limit the date range in an effort to reduce the voluminous results. Dkt. #77 at ¶ 12. However, despite several subsequent conferences, they cannot reach an agreement as to the production of records prior to January 1, 2011.
Having reviewed the parties' briefs and the declarations and exhibits referenced therein, the Court finds that Defendants have failed to demonstrate any undue burden with respect to the production of the records sought by Plaintiff. Accordingly, the Court will grant Plaintiff's motion with respect to ESI dated from January 1, 2009, to January 1, 2011. However, Plaintiff has limited its motion to Request Nos. 9, 23 and 28, and therefore this Order is also limited to those requests. Further, this Order makes no decisions with respect to Defendants' other asserted objections, which have not been raised or briefed in the instant motion. Accordingly, to the extent that Defendants are now compelled to produce the requested ESI between January 1, 2009, and January 1, 2011, such production remains subject to the remaining objections advanced by Defendants.
IV. CONCLUSION
The Court hereby finds and ORDERS that Plaintiff's Motion to Compel (Dkt. #76) is GRANTED IN PART AND DENIED IN PART as detailed above.
DATED this 6 day of January, 2015.