INTRODUCTION

*1 On December 4, 2017, Plaintiffs Wendy Littlefield and Darryl Littlefield (collectively, “Plaintiffs”) filed a Motion to Compel Further Production of Documents and for Issue, Evidentiary, and Monetary Sanctions against Defendant NutriBullet, L.L.C. (“Defendant”). (“Motion,” Dkt. No. 103). The Motion was supported by the declarations of Aaron Lavine (“Lavine Decl.”) and Derek S. Chaiken (“Chaiken Decl.”). (Id.). Defendant filed an Opposition on December 12, 2017, (“Opp.”), including the declarations of Bradley P. Childers (“Childers Decl.”) and Nanette Cunningham (“Cunningham Decl.”). (Dkt. No. 119). Plaintiffs filed a Reply on December 14, 2017, (“Reply,” Dkt. No. 125), supported by a second declaration of Aaron Lavine. (“Lavine Supp. Decl.,” Dkt. No. 126). On December 18, 2017, the Court held an evidentiary hearing at which Ms. Jones, Ms. Cunningham, Mr. Finnance, and Mr. Suzumoto testified on behalf of Defendant.

For the reasons stated below and at the hearing, the Motion to Compel Further Production of Documents is GRANTED IN PART. The Request for Monetary Sanctions is DENIED. The Request for Issue and Evidentiary Sanctions is DENIED. The Parties are ORDERED to submit further briefing on the issue of the substantial similarity between the Nutribullet 900 product and prior models by December 29, 2017. The Court will issue a separate Order setting a deadline for Defendant’s production of supplemental responses and documents.

II.

FACTUAL BACKGROUND

In the operative Third Amended Complaint (“TAC,” Dkt. No. 42), Plaintiffs allege that on January 21, 2016, Wendy Littlefield attempted to use Defendant’s product, a household blender called the NutriBullet 900, when “suddenly it malfunctioned, causing severe injuries” to her right hand. (Id. ¶¶ 9-10). The TAC asserts claims for negligence, strict product liability, and breach of implied warranty of merchantability as to Plaintiff Wendy Littlefield, and loss of consortium as to Plaintiff Darryl Littlefield. (Id. ¶¶ 17-48).

Plaintiffs initiated this action on September 14, 2016. Pursuant to the Court’s Amended Scheduling Order, the non-expert discovery cut-off is January 5, 2018. (Dkt. No. 95 at 1).

On October 6, 2017, Plaintiffs filed a Motion to Compel Further Production of Documents and for monetary sanctions in the amount of $16,200. (“MTC,” Dkt. No. 58). On November 3, 2017, the Court granted the MTC and awarded Plaintiffs $10,000 in monetary sanctions. (“Nov. 3 Order,” Dkt. No. 77 at 15-18).

The Court’s November 3, 2017 Order required Defendant to produce the following documents within its possession, custody or control:

(Id. at 15-16).

III.

DISCUSSION

A. Standards

In its November 3 Order, the Court addressed the standards governing the scope of permissible discovery and the production of documents pursuant to Federal Rule of Civil Procedure 34, which it incorporates by reference here. (Nov. 3 Order at 9-13). The Court provides the following additional guidance:

Parties have “an obligation to construe ... discovery requests in a reasonable manner.” Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 618-19 (D. Colo. 2007); see also McCoo v. Denny’s Inc., 192 F.R.D. 675, 694 (D. Kan. 2000) (“A party responding to discovery requests should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized ....”) (internal quotation marks omitted); King-Hardy v. Bloomfield Board of Education, 2002 WL 32506294, *5 (D. Conn. Dec. 8, 2002) (responding party must give discovery requests a reasonable construction, rather than strain to find ambiguity). Furthermore, “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Fed. R. Civ. P. 26 advisory committee notes (2015 amendments); see also Salazar v. McDonald’s Corp., 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 2016) (“[T]he revised rule places a shared responsibility on all the parties to consider the factors bearing on proportionality before propounding discovery requests, issuing responses and objections, or raising discovery disputes before the courts.”).

As the Court has previously explained, Rule 34 requires production of responsive documents “in the responding party’s possession, custody, or control.” Fed. R. Civ. P. 34(a). “The phrase ‘possession, custody or control’ is in the disjunctive and only one of the numerated requirements need be met.” Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995). “Control is defined as the legal right to obtain documents on demand.” United States v. Int’l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989). “Control must be firmly placed in reality, ... not in an esoteric concept such as ‘inherent relationship.’ ” Id. at 1453 (internal citation omitted). “The party seeking production of the documents ... bears the burden of proving that the opposing party has such control.” Int’l Union of Petroleum & Indus. Workers, 870 F.2d at 1452 “[P]roof of theoretical control is insufficient; a showing of actual control is required.” In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999); see also Montanez v. Gerber Childrenswear, LLC, 2011 WL 13128157, at *2 (C.D. Cal. June 6, 2011) (denying motion to compel where plaintiff failed to demonstrate that defendant had a legal right to obtain ingredient information from third party label manufacturers, even if defendant likely could obtain it); see also Tama Plastic Industry v. Pritchett Twine & Net Wrap, LLC, 2013 WL 275013, at *4 (D. Neb. 2013) (a party cannot be compelled to produce something it does not have and cannot obtain).

*3 Similarly, the court cannot order a party to produce documents that do not exist. A mere suspicion that additional documents must exist is an insufficient basis to grant a motion to compel. See, e.g., Bethea v. Comcast, 218 F.R.D. 328, 329 (D. D.C. 2003) (requesting party’s suspicion that responding party failed to produce responsive documents does not justify compelled inspection); Alexander v. Federal Bureau of Investigation, 194 F.R.D. 305, 311 (D. D.C. 2000) (a party’s mere suspicion that its opponent must have documents that it claims not to have does not warrant granting a motion to compel). Rather, the moving party must have a colorable basis for its belief that relevant, responsive documents exist and are being improperly withheld. See Carter v. Dawson, 2010 WL 4483814, at *5 (E.D. Cal. 2010) (defendants’ assertion that they are unable to locate responsive documents does not provide a ground for granting a motion to compel “unless Plaintiff can identify a specific document that Defendants have withheld”); Ayala v. Tapia, 1991 WL 241873, at *2 (D. D.C. 1991) (denying motion to compel where moving party could not identify documents that were withheld).

B. Motion To Compel Further Production Of Documents

Plaintiffs contend that Defendant has improperly restricted production to the Nutriblender 900 series, and continues to withhold documents that its employees have identified in depositions. At the hearing, Plaintiffs emphasized that they do not have assurances that the productions to date have been complete, and expressed particular concern about the purported paucity of documents regarding the history of changes to the user manuals. Defendant maintains that it has complied with the Court’s November 3 Order requiring further production of documents and that its search for responsive materials was reasonable.[1]

At the hearing, the Parties explained to the Court that they had a fundamental dispute about whether the productions were properly limited to information about the Nutribullet 900 model, as Defendant contends, or should encompass prior models, as Plaintiffs contend. In products liability cases, the scope of discovery extends not just to the specific product that caused the plaintiff’s injury, but also to models that are “substantially similar” to that product. See, e.g., Culligan v. Yamaha Motor Corp., USA, 110 F.R.D. 122, 126 (S.D. N.Y. 1986) (“[D]iscovery of similar, if not identical, models is routinely permitted in product liability cases.”). “Generally, different models of a product will be relevant if they share with the accident-causing model those characteristics pertinent to the legal issues raised in the litigation.” Barcenas v. Ford Motor Co., 2004 WL 2827249, at *3 (N.D. Cal.) (quoting Fine v. Facet Aerospace Products Co., 133 F.R.D. 439, 441 (S.D. N.Y. 1990)). “The requirement of ‘substantial similarity’ is at essence a matter of relevance to be decided at the discretion of the trial judge.” Belliveau v.Whirlpool Corp., 2008 WL 11358019, at *4 (W.D. Ky. May 21, 2008) (citing Briney v. Deere & Co., 150 F.R.D. 159, 162-64 (S.D. Iowa 1993)). “The law does not require that products or circumstances be identical to be substantially similar.” Belliveau, 2008 WL 11358019, at *4. “The test of relevance in these circumstances is characterized by a common sense approach.” Id. (citing In re Air Crash Disaster near Roselawn Indiana, 172 F.R.D. 295, 302-304 (N.D. Ill. 1997)).

*4 Rule 26(b)(1), as amended, specifically provides that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). It is particularly important to recognize the difference between discoverability and admissibility in products liability cases. As one court explained,

Albee v. Cont’l Tire N. Am., Inc., 2010 WL 1729092, at *7-8 (E.D. Cal. Apr. 27, 2010) (affirming magistrate judge’s order allowing discovery of tires other than the model at issue without an “extensive showing of substantial similarity” where discovery had not yet “advanced to the point at which plaintiff could be expected to make a showing of similarity”); but see Smith v. Gorilla, Inc., 2010 WL 4286246, at *4 (D. Mont. Oct. 21, 2010) (“While [defendant] should not be allowed to unilaterally define ‘substantially similar’ so as to limit the discovery to which [plaintiff] is entitled, neither should it be required to respond to discovery requests that are overly broad or not reasonably calculated to lead to the discovery of admissible evidence”).

Plaintiffs argued at the hearing that discovery should encompass all prior models from the “Magic Bullet” through the Nutribullet 900. Defendant initially contended that information relating only to the Nutribullet 900 was relevant, but then conceded that at most, discovery should encompass no more than the Nutribullet 600 and the Nutribullet 900 series. However, neither party has presented the Court with a list of potentially relevant models or a reasoned basis for concluding that a particular prior model is or is not “substantially similar” to the product at issue. Accordingly, the Court ORDERS the Parties to separately submit supplemental briefs no later than December 29, 2017, addressing which specific products should be deemed “substantially similar” to the Nutribullet 900. The briefs, which may not exceed five pages, should focus on Defendant’s specific product lines and should address the opposing side’s contentions about which products are “substantially similar” to the Nutribullet 900 for purposes of discovery as described above and at the hearing.

# Documents Plaintiffs’ Defendant’s Ruling Source/ Contentions Contentions 1 Netsuite Pogroszewski Produced GRANTED. native Depo. 34:16 – comms with Pursuant to data 35:16; consumers testimony Defendant must reporting provided at the provide malfunction, hearing, underlying explosion, Defendant native data laceration unilaterally files or injuries from determined the provide access Netsuite and keywords to be to those files; OMS systems used in protective in 11/20/17 conducting the order is in supp. search for place (Reply 4) production responsive (Opp. 6) materials and did not disclose the search terms to Plaintiffs. Defendant has not shown that its search was reasonable. Plaintiffs shall submit a set of keywords to Defendant to be run on the system by December 27, 2017. Defendant shall run the search and produce all resulting hits except those protected from disclosure by a privilege. # Documents Plaintiffs’ Defendant’s Ruling Source/ Contentions Contentions Defendant may not withhold documents from the production based on relevance. 2 OMS Pogroszweski See response GRANTED. native Depo. 39:23 – to #1 (Opp. Same ruling as database 40:24; see 6) #1 above. response to #1 (Reply 4) 3 Telemarke Pogroszweski Producing DENIED WITHOUT ting Depo. 27: 21 – telemarketing PREJUDICE AS scripts 28:5; scripts, MOOT. telemarketing though Plaintiffs scripts were scripts were withdrew this requested in not requested request at the RFP No. 23, in discovery hearing because which sought or ordered by the Parties all documents Court (Opp. have resolved used to sell 6-7) their dispute. the product (Reply 4) 4 Short Pogroszweski Previously DENIED WITHOUT code list Depo. 109:10 – produced PREJUDICE AS 19; Defendant documents MOOT. has not 2770-77 (Opp. Plaintiffs produced short 7) withdrew this code list; request at the digital link to hearing because folder the Parties purporting to have resolved contain doc their dispute. nos. 2750-2870 is empty; doc nos. 2770-77 have never been provided (Reply 4-5) 5 Develop-Finnance Depo. Finnance was DENIED. ment/ 70:20 – 71:10; asked about Plaintiffs have design 39:7 – 40:20; improvements, not shown that documents any documents so no the discovery from the that “in any specific requested is Borine way implicate documents to relevant to manufactu design, studies produce; their claims or ring or testing” also, product proportional to facility must be in the needs of produced; Plaintiff’s this case. design issues accident was at Borine not facility manufactured # Documents Plaintiffs’ Defendant’s Ruling Source/ Contentions Contentions relevant at the Borine because they factory (Opp. could reveal 7) similar issues at other facilities (Reply 5) 6 Capital Finnance Depo. Actually DENIED WITHOUT Bay 112:10 – asking for PREJUDICE AS quality 113:18; quality MOOT. assurance Defendant still inspection Pursuant to reports has not reports for testimony produced these NutriBullet offered at the documents 900 hearing, all (Reply 5) production, relevant which report documents have on cosmetic been produced. flaws in outgoing product. Searching for weekly report and will produce (Opp. 7-8) 7 Quality Finnance Depo. Per DENIED WITHOUT assurance 112:10 – Finnance’s PREJUDICE AS testing 113:18; testimony, MOOT. reports Finnance such Same ruling as from test testified that documents do #6 above. in China Defendant not exist from 2013 “see[s] copies (Opp. 8) to the of the reports” present (Reply 6) (citing Finnance Depo. 113:8-9) 8 Morales Pogroszweski Plaintiffs DENIED. monthly Depo. 219:2 – misconstrue Plaintiffs have personal 14; unclear if testimony, failed to show injury documents were which did not that Defendant complaint produced, but refer to is withholding reports even if they monthly any non-were, Defendant injury privileged did not provide reports, materials supplemental which do not responsive to written exist. this request. responses and Instead, verification there is (Reply 6) monthly reporting on contacts. # Documents Plaintiffs’ Defendant’s Ruling Source/ Contentions Contentions Morales monthly reports are being produced to show they are not injury reports (Opp. 8-9) 9 Tier 1 Pogroszweski Produced all DENIED. and Tier Depo. 215:10-relevant Plaintiffs have 2 agent 14; Defendant customer failed to show reports claims to have complaints, that Defendant from 2013 produced doc including is withholding through nos. 2750-2870, Tier 1 and any non-present but did not Tier 2 agent privileged (with exception reports in materials of document 11/20/17 responsive to nos. 2784-2861, supp. this request. audio files not production relevant here) (Opp. 9) (Reply 6) 10 Database Pogroszweski Documents not DENIED. of Depo. 95:12 - requested nor The request is warranty 96:8; warranty ordered overbroad and informati information is produced; the material on and responsive to irrelevant; requested is registrat Court Order private irrelevant and ion subpart “a,” business not which called information proportional to for all (Opp. 9-11) the needs of communications this case. with consumers who reported a malfunction, including documents related to actions stemming from those reports (Reply 6) 11 No add’l Finnance Depo. Documents GRANTED. documents 32:21 – 33:17; owned by Testimony at (except subpart “c” Chinese the hearing drawings requires factories; revealed that of the production of produced what Defendant has blades) documents was given by asked for and produced relating to the the factories received regarding implementation (Opp. 11) documents from the of product factories in design of designs; even China, and that # Documents Plaintiffs’ Defendant’s Ruling Source/ Contentions Contentions the if in Chinese, Defendant product, it must be and/or its including produced closely-related changes entities has to the employees in design China. “[A] company’s ability to demand and have access to documents in the normal course of business gives rise to the presumption that such documents are in the litigating corporation’s control.” Camden Iron & Metal, Inc. v. Marubeni Am.Corp., 138 F.R.D. 438, 443 (D. N.J. 1991); St. Jude Med. S.C., Inc. v.Janssen-Counotte, 104 F. Supp. 3d 1150, 1159 (D. Or. 2015) (“[C]ontrol, for purposes of document discovery under the Federal Rules of Civil Procedure, may be established by the existence of a principal-agent relationship.”) (internal quotation marks omitted). \\ \\ # Documents Plaintiffs’ Defendant’s Ruling Source/ Contentions Contentions The Court is not persuaded that Defendant’s relationship with these closely-related entities is such that it does not have the legal right to demand documents from them, as the hearing testimony strongly suggests that it does. If Defendant contends that it can obtain no more documents responsive to this request, it must provide Plaintiffs with a declaration showing the steps it took to obtain the documents and explaining why its search was reasonable. 12 Factory Pogroszweski Unclear what DENIED. reports Depo. 133:4 – is requested; The request is for 134:7; depo cite ambiguous. returned Defendant has does not products not made address unambiguous “factory statement that reports”; all responsive inspection documents have report “if been produced any” produced (Reply 8) with Netsuite and OMS reports (Opp. 11-12) # Documents Plaintiffs’ Defendant’s Ruling Source/ Contentions Contentions 13 Documents Finannce Depo. No documents GRANTED. for 69:9 – 14, to produce, The materials testing testifying as Finnance sought are performed there is no testimony relevant and by testing done at states there proportional to Capital Capital Bay; is no testing the needs of Bay at deposition at Capital this case. Nutri-testimony of Bay (Opp. 12-Whether or not bullet/ Mark Suzumoto 13) testing is done Capital indicates that “at Capital Brand’s Defendant “made Bay,” direction little effort Plaintiffs are to obtain entitled to documents” from documents sister company related to Capital Bay testing (Reply 8) performed at (Suzumoto Capital Bay’s transcript direction. unavailable) Defendant is reminded that parties must give discovery requests a reasonable interpretation. 14 Cannot Pogroszweski Incident DENIED. determine Depo. 95:12 – reports are Parties are not if 96:8; Defendant not created required to customer does not make from the create complaint any NutriLiving documents to or representation Portal (Opp. respond to a incident as to whether 13) request for reports email contact production. generated generated by from the Nutriliving Nutri-Portal, or the Living response by the portal customer were service rep, produced were produced because (Reply 8) no documents were specifically id’d # Documents Plaintiffs’ Defendant’s Ruling Source/ Contentions Contentions 15 Change If unredacted Produced as DENIED WITHOUT order copy cannot be received from PREJUDICE AS (bates produced, jury China; does MOOT. 2592) should be given not have more The Parties appears an adverse complete represented at to be inference version of the hearing redacted instruction document that they that redacted (Opp. 13-14) addressed this information is request among damaging to themselves and Defendant resolved their (Reply 8-9) dispute. 16 No Claim that All GRANTED. customer there were no responsive Plaintiffs service customer documents shall submit a complaint complaints in have been set of keywords from 2013 2013 “beggars produced; no to Defendant by was belief” (Reply complaints December 27, produced 9) from 2013 2017. exist (Opp. Defendant shall 14) run the search and produce all resulting hits except those protected from disclosure by a privilege. Defendant may notwithhold documents from the production based on relevance. 17 Documents Claim that Logs of DENIED. related there are no changes, Testimony at to the further reasons for the hearing changes documents changes, showed that made to regarding testing, Defendant has the user changes to incidents, produced emails guides manual “beggars complaints do discussing (other belief” (Reply not exist; changes to the than the 9) produced all user manuals. guides) versions of Plaintiffs have the user failed to show guide, which that Defendant are all the is withholding documents any non-responsive to privileged the request materials (Opp. 14) responsive to this request. # Documents Plaintiffs’ Defendant’s Ruling Source/ Contentions Contentions 18 Documents Argument that See response DENIED. regarding changes to to #17 (Opp. Same ruling as the bases manuals, 14-15) #17 above. or including reasons warnings, were that untethered to changes any triggering to the event “does not manuals stand to were made reason” b/c or were changes “must necessary have been made” in response to testing, complaints, or some other observable reason; adverse inference instruction is warranted (Reply 9) 19 Audio Plaintiff’s Does not know GRANTED. records request what Genesis/ The spelling of in the inadvertently Interactive Genesis/Genesys Genesis/ referred to Intelligence is not a valid Inter-“Genesis/ is and does ground for active Interactive” not have such objection. Intelli-instead of a system. Defendant is gence “Genesys/ All customer reminded that system Interactive” complaint parties must regarding customer recorded in give discovery customer service audio files requests a complaint platform; have been reasonable from 2013 Defendant’s produced interpretation. to the claim that it (Opp. 15) present does not have such a system is disingenuous (Reply 10) 20 Email Claim that See response DENIED. correspon search did not to #17 (Opp. Same ruling as dences reveal more 15) #17 above. regarding responsive adding emails “defies warnings belief”; must to the be explored at user evidentiary guide hearing (Reply 10) # Documents Plaintiffs’ Defendant’s Ruling Source/ Contentions Contentions 21 The draft A user manual There is no DENIED. of must be record of Plaintiffs have instructi certified for this manual, failed to show on manual UL which does that Defendant forwarded certification; not appear to is withholding to UL for Defendant must exist (Opp. any non-certifi-identify which 15) privileged cation is version or materials not draft of the responsive to identi-manual was this request. fied and provided to UL thus at the time of cannot UL testing determine (Reply 10) if it was produced 22 Reports/ Plaintiff has Legal GRANTED IN documents filed 14 other department PART. from the lawsuits does not Plaintiffs are legal against create entitled to dep’t Defendant; at a reports or evidence of regarding minimum, these documents re similar escala-lawsuits and escalation or complaints, but tion/ CLRA letters resolution of not how they resolu-are responsive, incident were resolved. tion of but were not reports or Plaintiffs have incident produced (Reply complaints; failed to show reports 10-11) produced all that Defendant or claims in its is withholding complaint possession; any non-s from request that privileged 2013 to Plaintiffs materials present, produce responsive to other documents this request as than 3 they claim to how the letters exist as part complaints were from of meet and resolved. attorneys confer (Opp. sent to 15-16) Nutribullet/ Capital Brands regarding injury causing events and the complaint in one other case # Documents Plaintiffs’ Defendant’s Ruling Source/ Contentions Contentions 23 Contracts Documents were No prior GRANTED. between requested in request for Defendant is Nutri-RFP No. 32; contracts for reminded that bullet “that Defendant production or parties must (and/or did not simply purchase of give discovery related provide these Nutribullet requests a entities, documents” is products; nor reasonable e.g. evidence of bad was interpretation. Capital faith (Reply production Brands) 11) ordered by for the the Court productio (Opp. 16-17) n or purchase of Nutribullet products from manufactu rers 24 Tran-Defendant’s Defendant DENIED. scripts representation does not Plaintiffs have of that only one transcribe failed to show customer call was customer that Defendant service/ transcribed calls beyond is withholding complaint “defies belief” transcripts any non-calls (Reply 11) produced; has privileged (only one produced materials produced) audio responsive to recordings this request. (Opp. 17) 25 Testing Plaintiff is Produced all DENIED. videos do merely seeking documents re Rule not information testing 34(b)(2)(E)(I) identify about each file performed by provides that which identifying the Capital Bay “[a] party must tests are test it depicts at produce being (Reply 11) Nutribullet/ documents as performed Capital they are kept Brand’s in the usual directions course of (Opp. 17) business or must organize and label them to correspond to the categories in the request.” The Rule “is meant to prevent a party from obscuring # Documents Plaintiffs’ Defendant’s Ruling Source/ Contentions Contentions the significance of documents by giving some structure to the production.” Consolidated Rail Corp. v. Grand TrunkWestern R.R. Co., 2009 WL 5151745 at *3 (E.D. Mich. 2009). So long as the production “allows the requesting party to reasonably determine what documents are responsive to its requests,” the production complies with Rule 34. Armor Screen Corp. v. Storm Catcher, Inc., 2009 WL 291160 at *5, (S.D. Fla. 2009). 26 Audio-Defendant’s Audio files DENIED. files of representation have customer Same ruling as some that audio number #25 above. customer files are associated calls identified by with each were customer number file; this is produced “is precisely the only way but there why Plaintiff they are is no requested OMS stored (Opp. identi-and Netsuite 17) fying native data” informa-(Reply 11) tion labeling/ classi-fying the audio-files

C. Request For Monetary Sanctions

*5 Plaintiffs seek an award of $12,485 for the attorney’s fees and costs they incurred in bringing the Motion. (Motion at 12; see also Lavine Decl. ¶ 15). Rule 37 provides specific direction regarding sanctions if a discovery motion is granted:

Fed. R. Civ. P. 37(a)(5)(A). Conversely, if the discovery motion is denied, the court must require the movant, the attorney filing the motion, or both to pay the party who opposed the motion its reasonable expenses, including attorney’s fees, incurred in opposing the motion. Fed. R. Civ. P. 37(a)(5)(B). Finally, if the motion is granted in part and denied in part, the court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). However, if the non-prevailing party can demonstrate “substantial justification” for its motion, nondisclosure, or opposition, or other circumstances make an award of expenses unjust, the court may deny sanctions. Fed. R. Civ. P. 37(a)(5)(A)(ii)-(iii).

Here, Defendant’s Opposition was substantially justified as evidenced by the fact that the Court has denied many of the requests at issue in this Motion. Accordingly, the request for monetary sanctions is DENIED.

D. Request For Evidentiary Sanctions

Plaintiffs seek an Order imposing the following issue and evidentiary sanctions:

(MTC at 9-11).

Federal Rule of Civil Procedure 37(b)(2)(A) provides that “[i]f a party or a party’s officer, director, or managing agent ... fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders.” As the Ninth Circuit has explained,

*6 United States v. Sumitomo Marine & Fire Ins. Co., Ltd., 617 F.2d 1365, 1369 (9th Cir. 1980) (internal case citations omitted). “Rule 37 sanctions must be just and must be specifically related to the particular ‘claim’ that was at issue in the order to provide discovery.” In re Rubin, 769 F.2d 611, 615 (9th Cir. 1985). Sanctions of dismissal or default pursuant to Rule 37are limited to cases where the party’s non-compliance is due to willfulness, fault, or bad faith. See Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004). In reviewing the propriety of lesser sanctions, the Ninth Circuit will “examine whether the trial court considered the relevant factors and whether the severity of the sanction is warranted by the conduct involved.” In re Rubin, 769 F.2d at 616.

Defendant’s conduct earlier in these discovery proceedings was inconsistent and, on occasion, far less than ideal.[2] However, Plaintiffs have not shown by the instant Motion that Defendant has intentionally disobeyed the Court’s November 3 discovery Order. Accordingly, the request for issue and evidentiary sanctions is DENIED.

IV.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion To Compel is GRANTED IN PART. The request for monetary sanctions is DENIED. The request for issue and evidentiary sanctions is DENIED.

Plaintiffs are ORDERED to provide keyword search terms to Defendant as required by this Order by December 27, 2017. The Parties are ORDERED to submit further briefing on the issue of the substantial similarity between the Nutribullet 900 product and prior models by December 29, 2017. The Court will issue a separate Order setting a deadline for Defendant’s production of supplemental responses and documents. In its supplemental responses, Defendant shall affirmatively state whether no documents or no additional documents exist responsive to the request, and whether any documents are being withheld pursuant to an Objection. Defendant is advised to begin preparing its responses and collecting documents immediately as the production deadline the Court will set in its subsequent Order will likely be compressed.

IT IS SO ORDERED.

As threshold matters, Plaintiff complains that Defendant’s November 20, 2017 production was untimely. Defendant argues that Plaintiff did not meet and confer before filing the Motion. Both Parties have some justification for their respective contentions. However, for purposes of resolving the instant disputes, particularly in light of the imminent discovery cut-off, even if Defendant’s November 20 production was untimely, to the extent that there was a supplemental production, it moots the motion to compel production of those documents. Furthermore, although it is always preferable for the Parties to meet and confer before filing a motion, and is required by the Court’s Local Rules, the Court exercises its discretion on the unique facts of this case to overlook the failure to strictly comply with the Local Rules. In the first instance, this Motion is substantively a Motion to Enforce the Court’s November 3 Order as opposed to a new motion to compel discovery responses. Furthermore, the Parties did meet and confer several times before the motion to compel addressed in the November 3 Order was filed.

Defendant’s current counsel substituted in on November 14, 2017. (Childers Decl. ¶ 3). The Court recognizes that Defendant served supplemental responses only one week after current counsel assumed representation of Defendant. (Id. ¶ 5).