The facts of this case are well-known to the parties and the Court. The Court recites only those facts that are relevant for decision on this motion. Johnny Wang (“Wang”) and Alec Dang (“Dang”) are the owners of Jade Lotus and its only officers and employees. (Vo Decl., 20.) Jade Lotus also operates under other fictitious business names and entities, including: Jade Lotus Way, Inc., dba “Lotus Eternity by Jade”; dba “Jade Lotus”; dba “Bihada World's”; and dba “Johnny Dung World.” (Id. 28.)
Plaintiffs bring this lawsuit on behalf of themselves and all other similarly situated individuals. (TAC, Docket No. 74 44.) Between October 2016 and March 2017, Plaintiffs were exposed to and saw Lotus's commercial advertising for Super Advanced Fucoidan Plus 800 mg (“Fucoidan 800 mg”) and Super Graviola 3000 mg (“Graviola 3000 mg”). (Id. 9–11.) On Lotus's e-commerce website, the products are advertised in broad and general terms in both English and Vietnamese. (Id. 2.) However, on television, in printed brochures, and on social media channels, the products are advertised to cure asthma, kill cancer, and strengthen the immune system by 900%. (Id.) These advertisements are only in Vietnamese. (Id.)
Nguyen paid a total of $1047 for Fucoidan 800 mg. (Id. 9.) Tran paid a total of $270 for Fucoidan 800 mg and Graviola 3000 mg. (Id. 10.) Another former named plaintiff paid a total of $130 for Fucoidan 375 mg. (Id. 11.) Nguyen and Tran allege that despite taking the Lotus products, they did not achieve any of the promised benefits. (Id. 9, 10.) Plaintiffs allege that the medical benefits advertised by Lotus are false or, at the very minimum, misleading. (Id. 36-37.) Plaintiffs also allege that the Vietnamese-only advertising is, by design, intended to exploit a lesser-educated, Vietnamese population. (Id. 2.) Had Plaintiffs known the truth about Lotus's misrepresentations, they would not have purchased the Lotus products. (Id. 9, 11.)
On June 30, 2017, Plaintiffs sent Lotus a Consumer Legal Remedies Act (“CLRA”) notice that identified the three products they purchased and four particular proscribed practices that they alleged Lotus engaged in. (Notice, Docket No. 39-6 at 2–3.)
On July 31, 2017, Plaintiffs filed this action against Lotus on behalf of themselves and “[a]ll persons, who, within four years prior to the date of the Complaint in this action was filed through the present ..., purchased Jade Lotus Products in the United States.” (Compl., Docket No. 1 23.) In the original complaint, Plaintiffs alleged that Lotus (1) violated the CLRA, Cal. Civ. Code §§ 1750, et seq.; (2) violated California's Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq.; (3) violated California's False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17500, et seq.; (4) breached an express warranty under California Commercial Code § 2313(1); and (5) breached an implied warranty under California Commercial Code § 2314. (Compl., Docket No. 1 32–73.)
*2 On October 23, 2017, Plaintiffs served Requests for Production of Documents concerning class certification discovery, including the total units of Jade Lotus products purchased and sold to customers and the gross sales for the products at issue. (Vo Decl., Docket No. 92 6.) On November 30, 2017, Jade Lotus served Initial Disclosures stating it had “documents related to Defendant's sales of the supplements/products in issue.” (Id., Ex. D.) On March 21, April 27, May 17, and May 23, 2018, Jade Lotus produced documents, including type-written ledgers and handwritten notes. (Id., Ex. H, I, J.) On May 15, 2018, the Court granted Plaintiffs' application to extend time for filing the motion for class certification, stating: “The Court expects the parties to work cooperatively to meet plaintiffs' outstanding discovery requests. The order is without prejudice to further relief if discovery is improperly withheld or delayed.” (Order, Docket No. 42.)
On May 24, 2018, Jade Lotus Person Most Knowledgeable (“PMK”) and owner Wang testified under oath at deposition. (Vo Decl., Docket No. 92-15, Ex. O.) Wang stated that the sales ledgers previously produced in response to document requests were created by him in approximately October 2017 for purposes of the lawsuit based on his sales estimates from his handwriting and memory. (Id. at 16:34:27-16:38:47.) In addition, Wang indicated that it is his business practice not to save invoices on the computer, reasoning “I have the paper from the salespeople. Why keep too many? It can get into the wrong hands, or some people can have it. So that's the reason that I like to not keep[ ] it. That's my own preference.” (Id.at 10:08:19-10:09:48.) Wang also said that Chase is the only bank that he uses for his merchant account. (Id. at 09:59:11-09:59:44.) During the deposition, Wang also stated that he provides mailings to former customers. (Id. at 13:55:34-13:56:06.)
On June 11, 2018, Sam Nguyen (“Sam”
), the CEO of Skin Science, an alleged Jade Lotus vendor, was deposed as its PMK. (Vo Decl., Docket No. 92-16, Ex. P.) During the deposition, Sam testified that Skin Science's business practice is to destroy all records after two years and that she did not know if she had any business records with the transactions with Jade Lotus. (Id. at 10:57:30-10:58:31.) Sam also indicated that Skin Science had done business with Jade Lotus, but she thought Skin Science had stopped doing business with Jade Lotus in late 2015 and business with Jade Lotus had lasted roughly one year. (Id. at 10:30:40-10:32:11; 10:48:00-10:48:20.)
On June 12, 2018, Mirna Guerrero (“Guerrero”), CEO of World's Choice Products, another alleged vendor of Jade Lotus, was deposed as its PMK. (Vo. Decl., Docket No. 92-18.) Guerrero acknowledged that World's Choice Products had produced three invoices for Graviola products that it had supplied Jade Lotus, and indicated that while World's Choice Products produces Fucoidan products for Jade Lotus, it did not provide any invoices for those products because they were “[n]ot the ones you were requesting in this particular subpoena. We had a specific name and milligrams.” (Id. at 12:04:07-12:04:36.)
Plaintiffs issued subpoenas to Chase Bank and Bank of America to obtain information about Jade Lotus' financial activities. (Vo Decl., Docket No. 92 25.) On July 20, 2018, Chase Bank produced financial records for eight accounts related to Jade Lotus and Dang. (Id. 26.) On October 4, 2018, Bank of America produced financial records for three accounts related to Jade Lotus. (Id. 27.) The bank statements show a monthly subscription to QuickBooks for 28 months. (Vo. Decl., Docket No. 106-10, Ex. W.) On December 4, 2017, a deposit for $20.00 is shown from “Qb Online.” (Id. at Ex. W-031.)
Plaintiffs filed a motion for sanctions seeking the following relief:
1. For an order deeming that the gross monthly bank deposits for Jade Lotus at Chase Bank and Bank of America, including merchant account deposits, in the total amount of $14,795,240.80 are attributed to the sales of the Jade Lotus Products at issue in this class action litigation;
*3 2. For an order precluding Jade Lotus from presenting any evidence or argument refuting the number of potential class members;
3. For an order that Jade Lotus produce the unredacted customer mailing list testified to by the Jade Lotus PMK;
4. For an order deeming that, based upon the Jade Lotus PMK testimony of an existing customer mailing list, those number of people purchased the Jade Lotus Products at issue in this class action litigation;
5. For an order deeming that the customer mailing list names and contact information be the basis for ascertainment of the class member group;
6. For an order that Plaintiffs be allowed to inform the jury that Jade Lotus has been found to engage in fabrication of evidence, concealment of evidence, and perjured testimony during the course of this lawsuit;
7. For an order lifting all protective order on all confidential documents produced by Jade Lotus in this case as well as the Jade Lotus PMK testimony;
8. For an Order to Show Cause re: Jade Lotus' violation of the Court's May 15, 2018, Discovery Order and concealing of financial and business records;
9. For an Order to Show Cause re: contempt of subpoena by Jade Lotus product vendors World's Choice Products, Inc., and Skin Science LLC;
10. For an order precluding Jade Lotus from introducing any fact, any witness or any document not disclosed in its Response to Special Interrogatories–Set One -and Requests for Production of Documents-Set One -propounded by Plaintiffs.
11. For monetary sanctions in the amount of $17,415 as a result of Jade Lotus' fabricated documents intended to mislead and render impossible determination of the potential class size and scope;
12. For monetary sanctions in the amount of$12,375 as a result of Lotus' Person Most Knowledgeable's perjured and misleading deposition testimony intended to mislead and render impossible determination of the potential class size and scope;
13. For monetary sanctions in the amount of $6,210 as a result of past motions to extend class certification filing that Plaintiffs were forced to file;
14. For monetary sanctions in the amount of $9,225 as a result of past informal discovery motions Plaintiffs were forced to file or oppose;
15. For monetary sanctions in the amount of $57,480 as a result of Plaintiffs having been forced to file the instant sanctions motion to remedy the harm and prejudice caused by Defendant's effort to mislead and render impossible determination of the potential class size and scope;
16. For an order continuing the class certification filing deadline, currently March 11, 2019, to July 15, 2019.
(Mot., Docket No. 91 at ii–iii.) Alternatively, Plaintiffs seek the following:
17. For an order that Jade Lotus produce all unredacted customer sales invoices between August 2015 and present;
18. For an order that Jade Lotus produce all unredacted vendor purchase invoices from World's Choice Products, Inc. and Skin Science LLC between August 2015 and present;
19. For an order that Jade Lotus produce all computers, laptops, hard drives and external storage drives used since August 2015 to present;
20. For an order that Jade Lotus produce all company financial information stored off-site, on-line or “in the cloud”;
*4 21. For an order that Jade Lotus produce its entire Quick Books file(s) from August 2015 to present;
22. For an order that Jade Lotus produce its filed Federal and State tax returns and all Schedules for years 2015, 2016, 2017 and 2018; and/or
23. For any other order which the Court deems fair and just.
(Id. at iii–iv.)
Spoliation occurs when a party destroys, significantly alters, or fails to preserve evidence in pending or reasonably foreseeable litigation. United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002). A party must “suspend any existing policies related to deleting or destroying files and preserve all relevant documents related to the litigation.” In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1070 (N.D. Cal. 2006)(citation omitted).
In the past, two sources provide a court with authority to sanction a party for spoiling evidence: “the inherent power of federal courts to levy sanctions in response to abusive litigation practices, and the availability of sanctions under Rule 37 against a party who ‘fails to obey an order to provide or permit discovery.’ ” Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006). However, Rule 37(e) of the Federal Rules of Civil Procedure was amended to establish the findings necessary to support certain curative measures for failure to preserve electronically stored information. This amendment “forecloses reliance on inherent authority or state law to determine when certain measures should be used” to address spoliation of electronically stored information. See Fed. R. Civ. P. 37(e), Advisory Committee Note to 2015 Amendment (emphasis added). Rule 37(e) recites the following:
*5 (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e).
First, Defendants state that Plaintiffs cannot rely on Fed. R. Civ. P. 11 to support their request for sanctions because the motion was not served under Rule 5 more than twenty-one days before filing since a “draft” version was sent to Defendant's counsel on January 17, 2019 and the motion was filed on February 4, 2019, approximately eighteen days later. (Opp'n, Docket No. 97 at 5.) In addition, the motion was not made separately, as required under Fed. R. Civ. P 11(c)(2) because the motion also requested discovery relief and modification of the scheduling order. (Id. at 5–6.) Finally, Jade Lotus contends that the motion does not describe the specific conduct that violates the rule so that it could withdraw or otherwise correct a “pleading, written motion, or other paper” in the safe harbor period. (Id. at 6.) See Fed. R. Civ. P. 11(c)(2).
The Court agrees with Jade Lotus. Since Plaintiffs did not comply with the requirements for service, twenty-one day safe harbor provision, and filing the motion for sanctions separately, the Court cannot grant the requested relief under Rule 11.
Defendants next contend that Plaintiffs have improperly sought relief under Fed. R. Civ. P. 37 because according to the Court's procedures, “[a]ll discovery motions are to be calendared before the magistrate judge.” Hon. James V. Selna's Procedures § 3. The Magistrate Judge's procedures likewise specify that he requires “[s]trict compliance with Local Rule 37-1 and 37-2.” Hon. John D. Early's Procedures § 1.
*6 Local Rule 37-1 requires that moving counsel arrange an in-person meeting with the opposing party regarding any discovery disputes pursuant to Fed. R. Civ. P. 26–37. “Unless relieved by written order of the Court upon good cause shown, counsel for the opposing party shall confer with counsel for the moving party within ten (10) days after the moving party serves a letter requesting such conference.” L.R. 37-1. Local Rule 37-2 requires that the parties submit a Joint Stipulation identifying any discovery disputes that were not resolved after conference and containing each party's position on each issue. In addition, it provides as follows:
The Court will not consider any discovery motion in the absence of a joint stipulation or a declaration from counsel for the moving party establishing that opposing counsel (a) failed to confer in a timely manner in accordance with L.R. 37-1; (b) failed to provide the opposing party's portion of the joint stipulation in a timely manner in accordance with L.R. 37- 2.2; or (c) refused to sign and return the joint stipulation after the opposing party's portion was added.
It is undisputed that Plaintiffs did not comply with L.R. 37-1 or 37-2 nor the Court's direction that discovery motions be calendared in front of the Magistrate Judge. Accordingly, to the extent that Plaintiffs' motion is a discovery motion, it will not be considered.
b. Fabricated Business Records
*7 Plaintiffs also argue that sanctions are appropriate in light of Wang's deposition testimony that the records Jade Lotus produced were not official records, but rather ones conjured up to the best of his memory for purposes of litigation. (Reply, Docket No. 101 at 5.) In his deposition, Wang states that he created the sales ledger for this lawsuit. (Wang Depo., Docket No. 92-15, Ex. O, 16:34:27-16:37:28.) Plaintiffs also allege that Jade Lotus “misrepresented its purchase and re-sale figures, misrepresented its vendor purchase time frames, misrepresented which Jade Lotus Products were purchased from which vendor, and misrepresented the Jade Lotus Products production dates and Jade Lotus Products sales period.” (Id.) For example, Plaintiffs use several invoices that Jade Lotus produced to show that the sales ledgers' production dates for Super Fucoidan 375 mg and 800 mg are incorrect since the ledgers indicate that Super Fucoidan 375 mg was discontinued in April 2017, but there are at least two invoices from April 2017 and May 2017 for the product. (Docket No. 105-1, Ex. H; Docket No. 105-4, Ex. K.) Similarly, the sales ledger notes that Super Fucoidan 800 mg was not yet produced in July 2016, but there is at least one Super Fucoidan 800 mg product sold on July 18, 2016. (Docket No. 105-2, Ex. I; Docket No. 105-5, Ex. L.)
Plaintiffs also point to Jade Lotus' banking records to argue that “the fabricated sales quantity and sales revenues were intentionally lowballed during the specific time frames” because “Wang believed at the time [his fabricated numbers] could not be refuted” in the absence of other business records or customer invoices. (Id. at 6.) Specifically, the sales ledgers indicate that Jade Lotus sold 354 units of Fucoidan 375 mg between August 2015 and March 2017, 316 units of Fucoidan 800 mg between August 2016 and January 2018, and 463 units of Graviola between August 2015 and January 2018:
Fucoidan 375 mg Fucoidan 800 mg Graviola Sales Ledger 354 units x $180 = $63,720
316 units x $261.50 = $82,634
463 units x $74.25 = $34,377.75
Minimum in Checks for Quantities purchased $63,418
The checks only paint a partial picture of the types of orders that were being filled because many of the checks have notations that do not list the products purchased. Yet, the ones that do have notations indicating which products were purchased show that there is a significant difference between the Fucoidan 800 mg bought and sold by Jade Lotus. The order invoices that Jade Lotus produced also show pricing that is somewhat inconsistent with the rates from the sales ledger. For example, invoices from July of 2016 and April of 2017 show that the Fucoidan 375 mg was being sold for $260, not $180 and that graviola was sold for $90, not $74.25; although, it appears that various promotions such as “buy 2 get 1 free” may also have impacted the average price per unit. (Invoices, Docket No. 105-4, Ex. K.)
As for the graviola product, the sales invoice from World's Choice Products indicates that Jade Lotus purchased for resale somewhere between 750-2,794 relevant units for which they paid a total of $37,565.66.
(Vo Decl., Docket No. 92-5, Ex. E.) But the sales ledger states that only 463 units were sold. (Docket No. 105-3, Ex. J.)
Plaintiffs cite Cal. Penal Code § 134 as a basis for this allegedly improper conduct, which states: “Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.”
*8 In response to the accusations of fabrication, Wang states the following:
My company has never formally kept track of our sales of particular items. Instead, I have a rough idea of how quickly certain items sell, and we periodically order products from our suppliers based on my perception of the demand. Sometimes we also give away items in order to clear out older product that has not yet sold.
Mike Vo accuses me of fabricating evidence for purposes of this lawsuit. This is not true. During the discovery in this case, I was asked to look for any documents showing the amount of sales for certain fucoidan and graviola products. Because I had not kept records of those sales, I decided to try my best to figure out the sales based on my memory. I prepared some handwritten notes, which I later typed into a word processor. I would not consider these to be business records and I did not intend them to be viewed as an actual record of our sales. I did not “fabricate” them for litigation purposes. However, I understand that because these documents were responsive to a discovery request, my attorneys produced them in discovery. When I was asked about these documents at my deposition, I testified truthfully about how and when I prepared them.
(Wang Decl., Docket No. 97-3 6-7.)
Jade Lotus denies that Wang fabricated evidence and argues that even if the allegations regarding fabrication were true, Jade Lotus “has not attempted to present any documentary evidence to a jury that Plaintiffs allege to be fabricated, nor have they attempted to present any testimony that Plaintiffs allege to be perjured.” (Opp'n, Docket No. 97 at 11.) Thus, Jade Lotus considers any sanction such as an adverse jury instruction to be premature, since Plaintiffs could impeach the documents or credibility of Wang if Jade Lotus attempted to submit those documents at trial. (Id.)
Indeed, on the present record, the only appropriate remedy is to allow for impeachment at trial.
c. Perjury & Concealed or Withheld Business Records
Plaintiffs argue that Jade Lotus has concealed or withheld business records that actually existed because it had used QuickBooks for accounting and inventory, but falsely denied doing so. (Reply, Docket No. 101 at 6–7.) During the PMK deposition, Wang denied using QuickBooks and ever having used any accounting software:
Q: You don't know if you use any specific inventory tracking software?
Q: What about accounting software, do you use any accounting software in your business?
Q: Is there any reason you don't use any accounting software?
Q: have you ever used accounting software?
(Wang Depo., Docket No. 92-15, Ex. O, 10:51:03-10:51:33.)
Wang's declaration instead states that Jade Lotus had at least attempted to use QuickBooks:
Mike Vo accuses me of committing perjury at a deposition because I testified that we do not use Quicken or Quickbooks in our business, whereas Bank of America and Chase Bank statements revealed a monthly subscription to QuickBooks. My testimony was not untruthful. Lotus by Johnny Dung, Inc. does not use QuickBooks to track inventory or sales. My former business partner, Lisa Nguyen, used Quickbooks, and after we split from her we tried using the program and had a subscription for a period of time. However, the program turned out to be more frustrating than helpful, and even after seeking help from Quickbooks technical support we were never able to get it to work for us. As far as I know, we eventually canceled the subscription because we had never figured out how to use it and it was not worth the cost.
(Wang Decl., Docket No. 97-3 9.) Bank records indicate that during the period from August 2015 through December 2017, Jade Lotus made payments in various amounts including $13.47, $39.95, $18.00, and $429.95 for “*QB ONLINE” or “*Qb Online.” (Vo Decl., Docket No. 102-10, Ex. W-001–W-030.) In addition, in December of 2017, there is a card purchase return under the Chase Bank account for Lotus by Johnny Dung, Inc. in the amount of $20.00 from *Qb Online. (Id. at W-031.)
While the bank statements establish that Jade Lotus subscribed to Quickbooks, as Jade Lotus points out, “the fact that Defendant and/or a predecessor business subscribed to Quickbooks for a period of time provides no information as to whether Defendant actually used Quickbooks or kept any particular information in that software.” (Opp'n, Docket No. 97 at 12–13.) Since there remains a question of fact as to whether Jade Lotus kept any records on Quickbooks that could have been retrieved, the Court is unwilling to impose sanctions based on the alleged perjury by Mr. Wang.
Plaintiffs argue that Wang committed perjury when, as PMK for Lotus By Johnny Dung, Inc., he stated that the company only banked with Chase Bank. (Mot., Docket No. 91 at 2; Wang Depo., Docket No. 92-15 at 09:15:06-09:15:32; 09:59:11-09:59:44.) Specifically, Wang states as follows:
Q: And what merchant—what bank do you currently use for your merchant account?
Q: And how long has that been?
A: Since the company established. I guess it's 2016 until now.
Q: And is that the only bank that you use for your merchant account?
(Id. at 09:59:11-09:59:44.) Wang explains his deposition testimony in a declaration in support of Jade Lotus' opposition as follows:
Mike Vo also accuses me of committing perjury by testifying that Lotus by Johnny Dung, Inc. used only Chase Bank for its merchant account. My testimony at the deposition was not false. As quoted in the motion, I testified that the company had been banking with Chase “since the company established. I guess 2016 until now.” The company I was referring to was Lotus by Johnny Dung, Inc. The documents attached to Mr. Vo's declaration showing banking activity with Bank of America were from previous business entities called “Lotus Eternity by Jade” and “Jade Lotus Way.” As far as I am aware, Lotus by Johnny Dung, Inc. has always banked with Chase Bank.
*10 (Wang Decl., Docket No. 97-3 10.) Since Wang's declaration indicates that there is an alternative explanation for his deposition testimony, the Court is unwilling to impose sanctions for the alleged perjury with respect to the banking records.
iii. Fucoidan 500 mg Purchases
Plaintiffs also allege that Wang falsely testified that Jade Lotus last purchased fucoidan 500 mg in 2015 and that it never purchased fucoidan 500 mg from World's Choice Products. (Mot., Docket No. 91 at 14–15.) Specifically, Wang testified as follows:
Q: Have you ever bought Fucoidan 500 milligram product from World Choice Products?
Q: When we left off before the lunch break, we were talking about Exhibit 2-B, I think, the 500 milligram Okinawan, right?
Q: And I think you said that you only ordered this one time—or your last order for this was in or about 2015, correct?
A: To the best of my knowledge.
Q: And you said that order in 2015 was between 500 and 800 units, your best estimate, correct?
A: To the best of my knowledge.
Q: And you sold all those, correct?
A: Yes, at that time, yes.
(Wang Depo., Docket No. 92-15, Ex. O at 12:30:27-12:30:29; 13:42:01-13:43:12.) Bank of America cancelled checks from Lotus Eternity by Jade and Jade Lotus Way, Inc. indicate that there were purchases for “Re bottling Fu AHCC 500 mg” and “complete pymt Fu 500” dated September 22, 2015 and January 16, 2017. (Checks, Docket No. 105-8, Ex. U, U-008, U-018.) Cancelled checks also show that Lotus Eternity by Jade made a purchase for “286 bottles Fucoidan 500” from Skin Science dated September 22, 2015, “50% of 1,000 Fu 500” on March 31, 2016 and “Finish Fucoidan 500 mg 1,294 bottles” on April 15, 2016. (Docket No. 105-9, V-002, V-009, V-010.) Wang explains the discrepancy between the amount purchased and the date purchased in his declaration:
The information I had at the time of the deposition was that we had not purchased the 500 mg product from that particular supplier. I do not know whether the notation on the check is incorrect, or whether I was mistaken at the deposition. Either way, I was not being untruthful in my testimony.
As the deposition transcript will confirm, my testimony about the timing of the purchase was given to the best of my knowledge at that time. If there were additional purchases in 2016, I do not remember them, and I certainly did not remember any such purchases at the time of my deposition. I cannot say whether the notations on the checks are incorrect, or whether I was simply mistaken at the deposition. Either way, I was not being untruthful in my testimony.
(Wang Decl., Docket No. 97-3 11-12.) Wang acknowledges that the information provided in his deposition is at odds with the information contained in the checks. (Id.) Wang indicates that he was mistaken either when writing the checks or had memory lapses at deposition. Plaintiffs instead argue that this was perjury designed to conceal information from them. (Mot., Docket No. 91 at 14–15.) If the cancelled checks accurately reflect the number of units of purchased fucoidan 500 mg from Skin Science, Jade Lotus purchased approximately twice as many units as Wang estimated.
The appropriate remedy here is impeachment at trial, not sanctions.
iv. Sam Nguyen's Deposition Testimony
*11 Plaintiffs argue that Sam's testimony was perjured because cancelled checks indicate that Jade Lotus purchased products from Skin Science in 2015, 2016, 2017, and 2018, but Sam testified that in her recollection, the last time Skin Science had done business with Jade Lotus was in 2015 and for roughly one year. (Skin Science checks, Docket No. 105-9, Ex. V; Sam Nguyen Depo., Docket No. 92-16 at 10:30:40-10:32:11, 10:34:14-10:34:25, 10:48:00-10:48:20, 11:00:38-11:01:02.) Specifically, Plaintiffs contend that Sam's testimony was perjured so that she would not have to produce records related to her transactions with Jade Lotus since Skin Science's business practice is to discard business records after two years. (Sam Nguyen Depo., Docket No. 92-16 at 10:58:07-10:58:24.) However, the Court will not impose sanctions based on the alleged perjured testimony because (1) there is no indication that Sam received notice regarding this motion for sanctions, and (2) Sam indicated at her deposition that if she had business records, Plaintiffs could request them and she would provide them, but Plaintiffs have not stated that they requested and were denied such records. (Id. at 10:58:15-10:58:31.)