INTRODUCTION

*1 Before the Court is Defendant FIGS, Inc.'s (“Defendant's” or “FIGS's”) March 13, 2020 Motion to Compel in the joint stipulation format pursuant to Local Rule 37-2 (the “Motion” or “Joint Stip.”). (Dkt. No. 89.) FIGS requests an order compelling responses from Plaintiff Strategic Partners, Inc. (“Plaintiff” or “SPI”) to its Requests for Production of Documents (“RFPs”). FIGS seeks two categories of documents: (1) documents relating to SPI's antimicrobial products, including SPI's advertising concerning those products; and (2) documents from a prior federal lawsuit in which SPI was accused of false advertising related to its antimicrobial products. (Joint Stip. at 1-2.) The parties also submit a Declaration of Fanxi Wang, Defendant's counsel, in Support of the Motion with supporting exhibits (Dkt. No. 89-2); and a Declaration of Robert Estrin, Plaintiff's counsel, in support of SPI's Opposition to FIGS's Motion with supporting exhibits (Dkt. No. 89-3). On March 18, 2020, FIGS filed a Supplemental Memorandum in in Support of its Motion. (Dkt. No. 94 (“Supp. Mem.”).) On March 19, 2020, the Court, finding the matter suitable for decision without oral argument, vacated the hearing on the Motion and took the matter under submission. (Dkt. No. 97.)

For the reasons outlined below, the Motion is DENIED.

RELEVANT BACKGROUND

I. The Fourth Amended Complaint and the Answer

The operative pleading in this action is SPI's Fourth Amended Complaint (the “FAC”) filed on May 1, 2020. (Dkt. No. 113.) The FAC makes the following allegations regarding FIGS's products, advertising, and business practices. SPI alleges that since FIGS's 2012 founding, it “recklessly advertise[d] the antimicrobial properties of its scrubs—making false and misleading statements for the sake of gaining market share[.]” (FAC ¶ 1.) FIGS makes medical apparel and other clothing items. (FAC ¶ 2.) One of FIGS's co-CEOs, Trina Spear, misappropriated confidential information about the medical apparel industry from her former employer, Blackstone Group Holdings, L.P., and along with co-CEO, Heather Hasson, used that information to create FIGS; SPI alleges that the information and data that Spear used to create FIGS was SPI's proprietary information “because Blackstone was in possession of [SPI's confidential] information at the time.” (FAC ¶ 3.)

SPI alleges that FIGS misrepresented “through its advertising, marketing, and branding that its FIGS Products will protect healthcare workers by reducing hospital-acquired infection rates by 66%.” (FAC ¶ 4.) SPI asserts that “FIGS's representations are untrue, misleading, and reasonably likely to deceive consumers, who consist of healthcare executives, hospital executives, retailers, reseller, and healthcare workers ... who purchase the FIGS Products. Further compounding the danger of making untrue and misleading claims, FIGS's health claims and public relations efforts have caused media outlets to repeat and disseminate FIGS's false and misleading claims about [its] Products.... FIGS's false and misleading claims have helped it obtain millions of dollars in funding enabling FIGS to continue to spread its false claims to the public and unfairly build its brand through additional advertisements.” (FAC ¶ 5.)

*2 SPI contends that FIGS's misrepresentations are harmful to healthcare workers and employers, patients, the public, its competitors, healthcare executives, retailers, and medical consumers. (FAC ¶¶ 6-11.) Additionally, “FIGS's false and misleading claims concerning the properties and qualities of the FIGS Products has allowed it to gain market share at the expense of its competitors”; its “false and misleading claims jeopardize the safety of the consumers who purchase the FIGS Products (and the patients they care for) as those consumers are likely to believe the FIGS Products provide them with certain protections which testing has shown that the FIGS Products do not”; and “FIGS's false and misleading claims have enabled it to raise millions of dollars in funding, building public relations campaigns, and obtain the benefits of social influencers.” (FAC ¶ 12.) And FIGS made misrepresentations about its charitable donations as a marketing ploy and as a part of its “broader plan to deceive the public[.]” (FAC ¶ 13.) SPI maintains that it “has been harmed by FIG'S false advertising as FIGS has acquired market share at the expense of SPI due to FIGS's false advertising, thus costing SPI revenues and profits it should have earned.” (FAC ¶ 14.)

The FAC asserts claims against FIGS, Hasson, and/or Spear for false advertising in violation of 15 U.S.C. § 1125(a); unfair business practices in violation of Cal. Bus. & Prof. Code § 17200; untrue and misleading advertising in violation of Cal. Bus. & Prof. Code § 17500; intentional interference with prospective economic relations; negligent interference with prospective economic relations; conversion; unjust enrichment; breach of fiduciary duty; aiding and abetting breach of fiduciary duty; defamation; and trade libel. (FAC ¶¶ 98-268.) SPI seeks injunctive relief requiring FIGS to discontinue advertising, marketing, packaging, disseminating, using, and otherwise making false and misleading statements about FIGS's products; injunctive relief requiring FIGS to provide citation in future advertisements supporting any scientific or health claims it makes regarding FIGS Products or the fabric used in those products; compensatory damages; treble damages pursuant to 15 U.S.C. § 1117(a); punitive damages; restitution; actual damages; disgorgement of profits; interest rate at the legal rate per annum; costs; attorney's fees; and all further relief the Court deems just and proper. (Id. at p. 55.)

FIGS has not yet filed an Answer to the FAC. However, in its Answer to the Second Amended Complaint (the prior operative proceeding), it generally denied SPI's allegations and asserted affirmative defenses, including one based on the doctrine of unclean hands. (Dkt. No. 48 at 19.)

II. Pertinent Discovery Efforts Preceding FIGS's Motion

The parties' initial discovery cut-off date was set as December 13, 2019, but was later advanced to March 26, 2020. (Dkt. Nos. 23, 59.) In a January 14, 2020 meet-and-confer letter, FIGS wrote that SPI had failed to complete its document production obligations by the parties' agreed deadline. (Dkt. No. 89-3 at 73.) FIGS claimed that SPI's document production was deficient as to several RFPS, including RFP Nos. 79-80, 83-84, 87, 90-91, 100-04, 111-14, 123, 125-26, 128-29, 130, and 135, which concerned documents relating to SPI's own antimicrobial products and advertising. (Id. at 76-77.) FIGS rejected SPI's position that SPI's products were not at issue. (Id. at 76.) FIGS contended that “SPI's purported injury ar[ose] from the alleged displacement of SPI's products allegedly caused by FIGS's false advertising.” Additionally, “how SPI developed and advertised its medical apparel products [went] directly to FIGS's defense based on ... unclean hands. SPI's misconduct in advertising and/or misrepresentation of its product quality pertain[ed] to the very subject matter involved (i.e. FIGS's products are related advertising) that affect[ed] the equitable relations between the parties.” (Id.) FIGS also argued that document production was deficient for RFP No. 159, which concerned documents about SPI's prior related false advertising and unfair competition litigation with an industry competitor. (Id. at 76-77.)

On February 14, 2020, the parties, having reached an impasse on several discovery issues, requested a telephonic conference with the Court concerning, inter alia, the present issues. (Id. at 82-88.) FIGS requested documents responsive to its RFPs concerning SPI's products and advertising in Scrubs Magazine, which it claimed were relevant to the issues of damages, causation, mitigation, and unclean hands. (Id. at 84) SPI responded that its products were not at issue in the case and so, the requested documents were irrelevant and FIGS's attempt to compel their production was harassment. (Id.) FIGS also asserted that SPI refused to produce documents from SPI's other relevant litigation, including prior sworn statements of witnesses who would testify in the instant litigation. (Id. at 84-85.) FIGS claimed those documents were relevant to its unclean hands defense and for impeachment. (Id.) In response, SPI averred that the documents FIGS requested were irrelevant; FIGS had not limited its request for documents; FIGS requested confidential documents that SPI could not provide; and federal courts routinely denied discovery into previously filed lawsuits by the parties. (Id. at 85.)

*3 On February 25, 2020, following an informal telephonic conference during which the Court “questioned the relevance and proportionality of FIGS's discovery requests for SPI documents pertaining to Plaintiff's ... own antimicrobial products, and its relationship with Scrubs Magazine,” the Court authorized the parties to file a motion to compel in the joint stipulation format pursuant to Local Rule 37-2 as to those issues. (Dkt. No. 82 at 1.) As to the request for documents pertaining to SPI's other litigation, the Court found that FIGS had not shown that this request was relevant or proportional to the needs of the case. (Id.) Thus, the Court denied without prejudice FIGS's request to compel production of documents from prior SPI litigation. (Id.) However, the Court directed the parties to meet and confer no later than March 6, 2020 on the issue of the prior litigation. (Dkt. No. 89-3, Ex. 2 at 11.) The Court further stated that if the parties could not “reach an agreement on what can or should be produced in some narrowed fashion,” they could “include this category in any motion to compel ... but not until there's been a thorough meet and confer on that issue.” (Id.)

On March 5, 2020, FIGS sent an email to SPI requesting deposition and trial transcripts, verified discovery responses, and declarations from 26 witnesses in the Vestagen Lawsuit (discussed infra). (Joint Stip. at 40.) The Motion followed.[1]

THE MOTION

A. Defendant's Position

The Motion seeks an order compelling SPI to produce documents in response to FIGS's RFPs, which SPI responded to on September 3, 2019. (Joint Stip. at 8.) The RFPs sought documents relating to SPI's own antimicrobial products and related marketing, and its prior litigation. Specifically, the Motion seeks an order compelling SPI to respond to FIGS's RFP Nos. 79-80, 83-84, 87, 90-91, 100-04, 111-14, 123, 125-26, 128-29, 130, 135, and 159.[2] FIGS argues that documents responsive to those RFPs are relevant because it and SPI use the same antimicrobial technology, SPI made advertising claims about the antimicrobial effect of its products that are similar to the claims it is presently accusing FIGS of making, and SPI witnesses provided declarations and testimony in the prior lawsuit concerning the antimicrobial efficacy of its products that are relevant for impeachment purposes. (Joint Stip. at 1-2, 4-8, 16-39.)

1. Documents Relating to Plaintiff's Antimicrobial Products and Related Marketing

The disputed RFP Nos. 79 through 135 concern FIGS's requests for documents related to SPI's own antimicrobial products and related advertising.[3] FIGS contends that SPI placed its antimicrobial products at issue when it asserted that FIGS made false and misleading statements about the properties of its products, in the following ways. First, SPI and FIGS use the same antimicrobial technology called Silvadur. (Id. at 5.) Second, SPI advertised for years that that its antimicrobial technology “starts to work upon contact with unwanted bacteria on the fabric ... essentially the bacteria is rendered ineffective immediately.” (Id.) As a result, details about SPI's antimicrobial products are relevant to SPI's ability to prove FIGS's liability. (Id.) Third, SPI had previously been accused of falsely advertising the efficacy of its antimicrobial products in a counterclaim by Vestagen Protective Technologies, Inc. (“Vestagen”), another of SPI's competitors, in Strategic Partners, Inc. v. Vestagen Protective Technologies, Inc., C.D. Cal. Case No. CV 16-5900-RGK (PLA) (the “Vestagen Lawsuit”); in that lawsuit, SPI submitted evidence supporting the efficacy of Silvadur, and was found not liable for false advertising. (Id. at 5-6.)

*4 FIGS claims that the requested documents are relevant to the issues of causation and damages—FIGS claims it is entitled to discovery how SPI's products and marketing differ from FIGS's, and how SPI could have been injured when both parties have made similar claims about the antimicrobial impact of the same technology. (Id. at 6.) Additionally, FIGS claims the evidence is relevant to its unclean hands defense because SPI's alleged misconduct with respect to the subject matter involved affects the equitable relations between the parties. (Id.) Additionally, the timing of SPI's antimicrobial product development is relevant in light of SPI's claim that it had invested five years in the developing its antimicrobial technology. (Id.)

FIGS also contends that SPI's other objections are meritless. First, considering the relevance of the requested evidence, SPI's objection based on undue burden and harassment must fail. (Id. at 7.) Second, SPI's objection on the basis of overbreadth is meritless because the relevant time period for SPI's claims is from 2012 through the present, i.e., the time period for which FIGS seeks documents. (Id.) Third, SPI has not made a timely and sufficient showing that the materials sought are protected by attorney-client privilege or the work product doctrine. (Id.) Finally, SPI cannot withhold documents based on any alleged privacy interests because a protective order has been entered in this case, which protects the proprietary nature and confidentiality of the materials sought. (Id. at 7-8.)

2. Documents Relating to the Vestagen Lawsuit

RFP No. 159 concerns FIGS's request for documents from the Vestagen Lawsuit, including deposition testimony, trial testimony, verified discovery responses, and declarations. (Id. at 36-37.) FIGS explains that the Vestagen Lawsuit involved a counterclaim by Vestagen against SPI for SPI's alleged false advertisement regarding the antimicrobial effect of its scrubs. (Id. at 37.) FIGS claims that the Vestagen Lawsuit documents show that SPI used Silvadur, it advertised for years about the impact of its antimicrobial technology, it submitted to the court substantial evidence about that technology, and it was ultimately found not liable for false advertising. (Id. at 37-38.) FIGS reiterates that the documents it seeks are relevant to the issues of causation, damages, and unclean hands. (Id. at 38.) And the prior sworn testimony of SPI's witnesses in the Vestagen Lawsuit are relevant because that lawsuit specifically relates to SPI's alleged false advertising involving the same technology at issue in this case; additionally, those statements are relevant for credibility and impeachment purposes. (Id.)

FIGS rejects as improper SPI's objections based on undue burden and harassment because the information it seeks is relevant. (Id. at 38-39.) Finally, SPI's objection to production of the Vestagen Lawsuit documents on the basis that those documents are shielded by a protective order is unavailing because the requested documents are within SPI's control; so, SPI may designate any of the documents as confidential under the protective order entered in this case. (Id. at 39.) Moreover, the Vestagen Lawsuit protective order does not cover trial testimony, which is public information. (Id.)

B. Plaintiff's Position

1. Documents Pertaining to SPI's Antimicrobial Products and Related Advertising

In opposition to the Motion, SPI first observes that at the February 25, 2020 conference, the Court, seeking to understand how the requested documents were relevant or proportional to FIGS's needs, advised that it was not inclined to compel production of the documents. (Id. at 8-10.) SPI also contends that FIGS's unclean hands defense is conclusory and baseless, and it cannot propel discovery into thousands of documents that are irrelevant to this case. (Id. at 8-9.)

*5 SPI contends that FIGS's attempt to analogize this case to the Vestagen Lawsuit is ill-fated. (Id. at 10-11.) SPI notes that Vestagen's products contained different technology than FIGS's products; Vestagen filed three counterclaims, including a false advertising claim, against SPI solely to exert leverage; and Vestagen presented little evidence to support the false advertising counterclaim. (Id.) In 2017, the Court dismissed the three counterclaims, finding the evidence presented did not support them. (Id. at 11.) SPI posits that Vestagen's meritless counterclaim was disingenuous because Vestagen later brought a post-trial motion on the Court's decision to dismiss the other two counterclaims, but did not include a request to revive the false advertising counterclaim; nor did it appeal the dismissal of that counterclaim. (Id.)

SPI argues and FIGS's request unreasonably seeks to impose undue burden and expense on SPI; and documents regarding research, development, and advertising of its antimicrobial products are irrelevant for several reasons. First, the requested documents are, in some cases, over five years old and do not speak to how FIGS's current products work, i.e., the crux of SPI's claims. (Id. at 12.) Second, FIGS cannot obtain discovery into all aspects of SPI's antimicrobial products simply because FIGS uses Silvadur and SPI used to use Silvadur. (Id. at 12.) And SPI's prior use of Silvadur has no bearing on the issue here, which is FIGS's application, research, development, and testing of Silvadur on its products, and its statements about that application. (Id. at 12-13.) SPI emphasizes that the main issue is whether FIGS's products have the ability it claims they do, i.e., to reduce hospital-acquired infections by 66 percent. (Id. at 13.)

SPI contends that FIGS cannot use an unclean hands defense to automatically broaden the scope of discovery, and the misconduct that forms the basis of the unclean hands defense must directly relate to SPI's use or acquisition of the right in suit. (Id.) SPI states that SPI's products do not relate to how it acquired its right to sue FIGS, i.e., FIGS making false claims about its products. (Id. at 14.) Finally, SPI contends that contrary to FIGS's contention otherwise, it never made false claims about its products' ability to reduce hospital acquired infections or to kill bacteria, or about the level of antimicrobial composition of its products. (Id. at 14-15.)

2. Documents Pertaining to the Vestagen Lawsuit

SPI first incorporates all of the above arguments in response to FIGS's RFP No. 159 seeking documents relating to the Vestagen Lawsuit. (Id. at 39 n.7.) SPI notes that FIGS's position about the request for documents related to SPI litigation has shifted. (Id. at 39.) Initially, FIGS wanted all documents related to other litigation in which SPI had been involved, but after several meet and confer discussions, it narrowed is request to deposition and trial transcripts, verified discovery responses, and declarations from SPI witnesses in the Vestagen Lawsuit. (Id.)

SPI argues that the Vestagen Lawsuit documents are irrelevant to the issues in this case, i.e., FIGS's advertising and whether FIGS's products achieve the claims it advertises; moreover, federal case law generally prohibits discovery into a company's other litigation, which concerns issues different to those involved in the present dispute. (Id. at 40-41 (citing, inter alia, Oklahoma, ex rel. Edmondson v. Tyson Foods, Inc., 2006 WL 2862216, at *1 (N.D. Okla. Oct. 4, 2006) (“Tyson Foods”).) SPI explains that courts have generally rejected the type of discovery FIGS seeks here: “cloned” or “piggybacking” discovery; and there is no reason to deviate from that rejection here. (Id. at 41 (citing Wollam v. Wright Med. Grp., Inc., 2011 WL 1899774, at *1 (D. Colo. May 18, 2011).)

*6 Finally, SPI rejects the notion that FIGS is entitled to the Vestagen Lawsuit documents for impeachment purposes. (Id. at 41-42.) It argues that a party may only obtain documents for impeachment purposes if the information would be otherwise discoverable under Federal Rule of Civil Procedure 26(b). (Id.) Here, because the documents FIGS seeks are neither relevant nor proportionate to the needs of this case, FIGS cannot obtain those documents for impeachment purposes. (Id. at 41-42.)

THE SUPPLEMENTAL MEMORANDUM [Dkt. No. 94]

In the Supplemental Memorandum, FIGS reiterates that the requested documents about SPI's antimicrobial products are relevant because SPI used Silvadur; it made at least one advertising claim about its own Silvadur-based products that is similar to a claim made by FIGS that SPI alleges to be false; and SPI submitted substantial evidence supporting the truth of its advertising in the Vestagen Lawsuit. (Supp. Mem. at 2.) FIGS claims that because SPI has accused FIGS of false advertising relating to Silvadur-based products, SPI's evidence supporting the truth of similar advertising is probative to the issues in this case. (Id.) FIGS also claims that in its Opposition to the Motion, SPI made claims about Silvadur and its advertising that lacked evidentiary support. (Id. at 2-3.) And FIGS claims the evidence submitted to the Vestagen Court is relevant because SPI defeated a false advertising claim involving similar products and statements based, at least in part, on the evidence it submitted in that lawsuit. (Id. at 3-4.) FIGS next reiterates that the requested documents are relevant to its unclean hands defense, and that the case law SPI cites in support of its position is inapposite. (Id. at 4-5.) In so arguing, FIGS maintains that SPI and FIGS both used Silvadur during the relevant time period and made similar claims about its efficacy. (Id.) Thus, FIGS's unclean hands defense concerns the same issues that are at the heart of SPI's claims against FIGS, and FIGS is entitled to discovery relating to those products so that FIGS can prove its unclean hands defense at trial. (Id. at 5.)

FIGS reasserts that the Vestagen Lawsuit documents concern the same subject matter as this lawsuit and are relevant for impeachment purposes, and argues that the cases SPI relies on in its Opposition are misplaced. (Id. at 6-7.) Finally, FIGS contends that the need for the requested documents outweighs any alleged burden to SPI because the documents FIGS seek go to the heart of the issues in this dispute, and SPI has not alleged any particularized burden other than a vague and unsubstantiated claim that it will need to provide thousands of documents. (Id. at 8.)

LEGAL STANDARD

Under Federal Rule of Civil Procedure 26, a party may obtain discovery concerning any nonprivileged matter that is relevant to any party's claim or defense and is proportional to the needs of the case. FED. R. CIV. P. 26(b)(1). As amended in 2015, Rule 26(b)(1) identifies six factors to be considered when determining if the proportionality requirement has been met, namely, the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to the relevant information, the parties' resources, the importance of the discovery in resolving the issues and whether the burden or expense of the proposed discovery outweighs its likely benefit. Id. Relevant information need not be admissible to be discoverable. Id.

*7 Rule 37 provides that “[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection.” FED. R. CIV. P. 37(a)(3). The party seeking to compel production of documents under Rule 34 has the “burden of informing the court why the opposing party's objections are not justified or why the opposing party's responses are deficient.” Best Lockers, LLC v. Am. Locker Grp., Inc., Case. No. SACV 12-403-CJC (ANx), 2013 WL 12131586, at *4 (C.D. Cal. Mar. 27, 2013).

District courts have broad discretion in controlling discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). When considering a motion to compel, the Court has similarly broad discretion in determining relevancy for discovery purposes. Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005) (citing Hallet, 296 F.3d at 751). In resolving discovery disputes, the court may exercise its discretion in “determining the relevance of discovery requests, assessing oppressiveness, and weighing those facts in deciding whether discovery should be compelled.”Unilin Beheer B.V. v. NSL Trading Corp, Case No. CV 14-2210-BRO (SSx), 2015 WL 12698382, at *4 (C.D. Cal. Feb. 27, 2015) (citing Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 558 (D. Conn. 2006) (internal quotation marks omitted)).

DISCUSSION

At issue in the Motion is whether the documents FIGS seeks concerning SPI's own antimicrobial products and the Vestagen Lawsuit are relevant to the claims at issue and proportionate to the needs of this case, where SPI alleges that FIGS has made false statements regarding FIGS's products. As discussed below, the Court concludes that FIGS has not demonstrated the relevance or proportionality of the discovery sought and, consequently, the Motion must be DENIED.

I. Documents Pertaining to SPI's Own Antimicrobial Products

The first category of documents—documents pertaining to SPI's antimicrobial products and related advertising—are not relevant to the claims or defenses at issue in this case. Despite FIGS's contention otherwise, neither party has put that at issue. SPI alleges that FIGS made false and misleading statements about its products that had the effect of inflating its market share and deceiving customers. (See generally FAC.) In the Answer, FIGS denies Plaintiff's allegations, but does not assert a counterclaim asserting any wrongdoing on SPI's part, or mentioning SPI's products, statements, or advertising practices. (See generally Dkt. No. 48.) FIGS merely asserted an affirmative defense based on unclean hands, which, as discussed in greater detail below, does not warrant compelling production of the requested documents. (See id. at 19.)

This lawsuit is a textbook example of a straightforward false advertising case concerning statements made in commercial advertisements that are false or misleading, which actually or have the tendency to deceive their audience, that influence purchasing decisions, and which cause likely injury to a plaintiff.[4]TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 828-29 (9th Cir. 2011) (citing Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997)). In such a case, as here, brought under the Lanham Act, 15 U.S.C. § 1125(a), a defendant's liability stems from the inherent falsity or misleading nature of its statements and the typical plaintiff is an industry competitor that suffers economic loss because of the impact of a defendant's misstatement. Jack Russell v. Am. Kennel Club, 407 F.3d 1027, 1037 (9th Cir. 2005) (under false advertising prong of Lanham Act, “plaintiff must show: (1) commercial injury based upon a misrepresentation about a product; and (2) that the injury is ‘competitive,’ or harmful to the plaintiff's ability to compete with the defendant.”). The plaintiff's injury is caused by how the defendant's statements affect the balance of market share. Id. The plaintiff's products or advertising practices are generally immaterial in this analysis. SPI alleges that FIGS made statements about its products that were intrinsically false or misleading. Thus, on its face, SPI's products are not at issue and would not be relevant. But Rule 26(b) permits discover relevant to any claim or defense at issue in the action. FED. R. CIV. P. 26(b)(1). So, the inquiry here is whether documents relating to SPI's products are somehow relevant to FIGS's defense(s).

*8 FIGS contends that documents concerning SPI's antimicrobial products are relevant to its unclean hands defense because both companies' products employ the same antimicrobial technology called Silvadur. (Motion at 5-6.) SPI rebuts that contention by stating that it has not used Silvadur for many years. (Id. at 12.) FIGS provides no evidence to refute that rebuttal, but even if both companies use or used Silvadur, that does not matter for purposes of determining whether FIGS's statement about its products the ability to reduce hospital acquired infections to a precise degree were true or false. FIGS is not entitled to discovery how its and SPI's products differ because the differences between the parties' uses of the same product is immaterial to the veracity of FIGS's commercial statements about antimicrobial properties of its products – regardless of whether those products use Silvadur or not.

FIGS also believes the documents relating to SPI's antimicrobial products and advertising are relevant because both parties made similar claims in their advertising. The Court disagrees that the claims made by the parties are similar. FIGS stated that its products reduced the rate of hospital-acquired infections by 66%; that it has donated thousands of its products, which have significantly reduced hospital-acquired infection rates; and that its products were 100% antimicrobial and were made of silver. (See generally FAC.) The record here does not suggest that SPI has made any such claims. SPI claimed that its technology “kills bacteria immediately upon contact,” and that its products “start[ ] to work upon contact with unwanted bacteria on the fabric ... essentially the bacteria cell is rendered ineffective immediately.” (Motion at 5.) SPI has also advertised that its “latest antimicrobial technologies ... [lead to a] reduction in the growth of unwanted bacteria on [its] garments.” (Id. at 31 (citing RFP No. 126).) These are not, in fact, similar statements sufficient to warrant the broad discovery expedition FIGS seeks here.

Turning to FIGS's unclean hands defense as a basis to compel additional discovery from SPI regarding its own products, the Court first notes that FIGS's unclean hands defense is arguably stale because it was raised in its Answer filed in response to SPI's Second Amended Complaint, which is no longer the operative pleading. The Second Amended Complaint has been superseded by the FAC, to which FIGS has yet to file an Answer. But even assuming FIGS maintains an unclean hands defense in any future pleading, it still would not warrant that additional document production from SPI that FIGS seeks here. In its Answer, FIGS asserted the following affirmative defense of unclean hands:

(Dkt. No. 48 at 19.) This defense is conclusory, is not supported by any factual allegations, and does not cite any of SPI's products or advertising; thus, it is not “sufficient to put [SPI] on notice that [FIGS] intended to raise [unclean hands] allegations regarding” SPI's antimicrobial products or advertising related to those products. Pom Wonderful LLC v. Welch Foods, Inc., 737 F. Supp. 2d 1105, 1112 (C.D. Cal. 2012); Monster Energy Co. v. Vital Pharm., Inc., Case No. CV 18-1882-JGB (SHK), 2019 WL 8112506, at *8 (C.D. Cal. Oct. 16, 2019). Besides the arguable inference raised by the unclean hands defense that SPI engaged in unspecified misconduct, nowhere in the Answer does FIGS cite SPI's products or actions at all, either by raising a counterclaim against SPI or otherwise suggesting that SPI engaged in any misfeasance.

The defense of unclean hands is narrowly focused and the “misconduct that forms the basis for the unclean hands must be directly related to plaintiff's use or acquisition of the right in suit.” Id. at 1110 (quoting as modified Specialty Minerals, Inc. v. Pluess-Staufer AG, 395 F. Supp. 2d 109, 113 (S.D.N.Y. 2005)). But “[d]irect relation,” is not the standard applied by the Ninth Circuit; rather, a defendant in a Lanham Act case must demonstrate “ ‘that the conduct related to the subject matter of its claims,’ for ‘equity requires that those seeking its protection shall have acted fairly and without fraud or deceit as to the controversy at issue.’ ” Pom Wonderful LLC v. Coca Cola Co., 166 F. Supp. 3d 1085, 1095 (C.D. Cal. Feb. 19, 2016) (quoting Fuddruckers, Inc. v. Doc's B.R. Others, Inc., 826 F.2d 837, 847 (9th Cir. 1987) (emphasis in original) (citation omitted)). An unclean hands defense, therefore, would allow for discovery as to the controversy at issue, which here, only concerns FIGS's representations and advertising about its antimicrobial products, not SPI's products or advertising.

*9 The Court is also persuaded that the discovery FIGS seeks is not proportional to the needs of the case. FIGS seeks thousands of documents related to many of SPI's products and advertising related to those products. The Court strains to understand how that request is anything other than a fishing expedition to discovery support for a conclusory unclean hands defense, or how access to that information would assist FIGS in defending against SPI's claims.

For the foregoing reasons, the Court concludes that the documents FIGS seeks pertaining to SPI's own products and related advertising are neither relevant to the claim san defenses at issue in the case nor proportionate to the needs of the case.

Accordingly, FIGS's request to compel production of those documents is DENIED.

II. Documents Pertaining to the Vestagen Lawsuit

The second category of documents FIGS seeks is documents pertaining to the Vestagen Lawsuit, in which Vestagen asserted a false advertising counterclaim against SPI. FIGS argues that those documents are relevant and necessary for impeachment purposes. For the reasons discussed below, the Court DENIES FIGS's request to compel these documents.

FIGS's attempt to analogize this case to the Vestagen Lawsuit is unavailing. The crucial difference between this case and the Vestagen Lawsuit is that is in the Vestagen Lawsuit, Vestagen asserted a false advertising counterclaim against SPI, thereby putting SPI's products and statements about those products at issue in the litigation. Here, FIGS has not asserted such a counterclaim; it only raised an unclean hands affirmative defense, which, as discussed above, is insufficient to make documents about SPI's products and advertising relevant in this litigation. Vestagen made specific allegations about SPI's advertising practices relating to its own products that triggered SPI's obligation to produce information in that lawsuit. Here, there has been no comparable allegations by FIGS.

The mere fact that SPI produced certain documents in the Vestagen Lawsuit, and that case involved claims of false advertising does not necessarily make information discoverable here. See Chen v. Ampco Sys. Parking, 2009 WL 2496729, at *3 (S.D. Cal. Aug. 14, 2009) (collecting cases, including Moore v. Morgan Stanley & Co., Inc., 2008 WL 4681942, at *5 (N.D. Ill. May 30, 2008), and Tyson Foods, 2006 WL 2862216, at *2 (denying plaintiff's motion to compel discovery from similar case, finding that requested discovery “is not necessarily relevant to the current proceeding”); but see Schneider v. Chipotle Mexican Grill, Inc., 2017 WL 1101799, at *3-*4 (N.D. Cal. Mar. 24, 2017) (distinguishing Tyson Foods and Chen, and permitting discovery of documents produced in separate cases with “significant factual and legal overlap”). To compel the discovery FIGS seeks, the Court must be persuaded that the requested documents are relevant to this case.

As emphasized above, this lawsuit concerns only FIGS's products, its advertising, and whether its products achieve the claims it advertises. Conversely, by bringing a false advertising counterclaim, Vestagen made allegations concerning SPI's products and advertising, triggering SPI to produce information about those. While the legal underpinning for the claims in both lawsuits may be similar, i.e., a false advertising claim, the lack of factual overlap precludes compelling the discovery FIGS seeks. This lawsuit and the Vestagen Lawsuit involve different products made by different companies; additionally, FIGS made statements at issue here that are different from those made by either SPI or Vestagen in the Vestagen Lawsuit. Thus, the Court concludes that the documents FIGS seeks from the Vestagen Lawsuit are not relevant to the claims or defenses at issue in this lawsuit. SeeFED. R. CIV. P. 26(b)(1).

*10 Finally, the Court disagrees with FIGS that it should be permitted to obtain documents from the Vestagen Lawsuit for impeachment purposes. After Rule 26(b) was amended in 2015, the plain language of the Rule made clear that discovery is limited to matters relevant to the parties' claims and defenses; thus, “information that could be used to impeach a likely witness” is still discoverable pursuant to Rule 26(b)(1) if “suitably focused,” that is, that the information sought is relevant to the parties' claims and defenses. SeeFED. R. CIV. P. 26, Committee Notes on Rules—2015 Amendment; see also IceMOS Tech. Corp. v. Omron Corp., 2020 WL 1905736, at *3 (D. Ariz. Apr. 17, 2020) (discussing impact of 2015 amendment). As noted above, the Vestagen Lawsuit documents are not relevant to SPI's claims or FIGS's unclean hands defense. Thus, FIGS cannot obtain documents from the Vestagen Lawsuit for impeachment purposes.

CONCLUSION

For the foregoing reasons, FIGS's Motion to Compel is DENIED.

IT IS SO ORDERED.

FIGS' REQUEST FOR PRODUCTION NO. 79:

DOCUMENTS sufficient to show when YOU first began developing YOUR ANTIMICROBIAL PRODUCTS.

SPI'S RESPONSE TO REQUEST FOR PRODUCTION NO. 79:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 80:

All DOCUMENTS and COMMUNICATIONS CONCERNING any scientific analysis, testing, and clinical studies CONCERNING YOUR ANTIMICROBIAL PRODUCTS, or any antimicrobial technology or agent used in YOUR ANTIMICROBIAL PRODUCTS or related fabrics, without regard to time.

RESPONSE TO REQUEST FOR PRODUCTION NO. 80:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 83:

All DOCUMENTS CONCERNING the labels of YOUR ANTIMICROBIAL PRODUCTS, including all drafts and representative samples thereof, without regard to time.

RESPONSE TO REQUEST FOR PRODUCTION NO. 83:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 84:

*11 All DOCUMENTS CONCERNING product inserts and labels for YOUR ANTIMICROBIAL PRODUCTS, including all drafts and representative samples thereof, without regard to time.

RESPONSE TO REQUEST FOR PRODUCTION NO. 84:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 87:

DOCUMENTS sufficient to show the portion of YOUR annual advertising expenditure(s) directed to marketing, advertising, and promoting YOUR ANTIMICROBIAL PRODUCTS since January of 2015.

RESPONSE TO REQUEST FOR PRODUCTION NO. 87:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 90:

All DOCUMENTS and COMMUNICATIONS CONCERNING product reviews of YOUR ANTIMICROBIAL PRODUCTS.

RESPONSE TO REQUEST FOR PRODUCTION NO. 90:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 91:

All DOCUMENTS and COMMUNICATIONS CONCERNING consumer complaints about YOUR ANTIMICROBIAL PRODUCTS.

RESPONSE TO REQUEST FOR PRODUCTION NO. 91:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

*12REQUEST FOR PRODUCTION NO. 100:

All COMMUNICATIONS between YOU or on YOUR behalf and licensors, suppliers, sellers, or distributors of any antimicrobial technology or agents, including but not limited to DowDupont Specialty Products, DuPont Industrial Biosciences and DOW Chemical Company.

RESPONSE TO REQUEST FOR PRODUCTION NO. 100:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 102:

All DOCUMENTS and COMMUNICATIONS CONCERNING any contracts or agreements CONCERNING SILVADUR.

RESPONSE TO REQUEST FOR PRODUCTION NO. 102:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 103:

All DOCUMENTS and COMMUNICATIONS CONCERNING any antimicrobial properties or characteristics of SILVADUR.

RESPONSE TO REQUEST FOR PRODUCTION NO. 103:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 104:

All DOCUMENTS and COMMUNICATIONS CONCERNING the use of SILVADUR in any product manufactured or sold by YOU.

RESPONSE TO REQUEST FOR PRODUCTION NO. 104:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

*13REQUEST FOR PRODUCTION NO. 111:

All COMMUNICATIONS between YOU or anyone on YOUR behalf CONCERNING the efficacy of YOUR ANTIMICROBIAL PRODUCTS in inhibiting the growth of bacteria or preventing or reducing odors, deterioration, and discoloration, without regard to time.

RESPONSE TO REQUEST FOR PRODUCTION NO. 111:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 112:

All DOCUMENTS CONCERNING the efficacy of YOUR ANTIMICROBIAL PRODUCTS in inhibiting the growth of bacteria or preventing or reducing odors, deterioration, and discoloration, without regard to time.

RESPONSE TO REQUEST FOR PRODUCTION NO. 112:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 113:

All COMMUNICATIONS between YOU or anyone on YOUR behalf CONCERNING the efficacy of YOUR ANTIMICROBIAL PRODUCTS in resisting fluids and stains, without regard to time.

RESPONSE TO REQUEST FOR PRODUCTION NO. 113:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 114:

All DOCUMENTS CONCERNING the efficacy of YOUR ANTIMICROBIAL PRODUCTS in resisting fluids and stains, without regard to time.

RESPONSE TO REQUEST FOR PRODUCTION NO. 114:

*14 SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 123:

All DOCUMENTS and COMMUNICATIONS CONCERNING YOUR use of “Scrubs Magazine” to market or advertise YOUR ANTIMICROBIAL PRODUCTS.

RESPONSE TO REQUEST FOR PRODUCTION NO. 123:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 125:

All DOCUMENTS and COMMUNICATIONS CONCERNING the April 24, 2015 publication titled “What's CERTAINTY? We're so glad you asked...” posted at scrubsmag.com, at https://scrubsmag.com/whats-certainty-technology-were-soglad-you-asked-2/.

RESPONSE TO REQUEST FOR PRODUCTION NO. 125:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 126:

All DOCUMENTS and COMMUNICATIONS CONCERNING the statement that “CERTAINTY, the latest antimicrobial technologies in Cherokee, Dickies, and Code Happy medical apparel” leads to “[a] reduction in the growth of unwanted bacteria on our garments” in the April 24, 2015 publication titled “What's CERTAINTY? We're so glad you asked...” posted at scrubsmag.com, at https://scrubsmag.com/whats-certainty-technology-were-so-glad-you-asked-2/.

RESPONSE TO REQUEST FOR PRODUCTION NO. 126:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

*15REQUEST FOR PRODUCTION NO. 128:

All DOCUMENTS and COMMUNICATIONS CONCERNING the April 24, 2015 publication titled “Protect and defend,” posted at scrubsmag.com, at https://scrubsmag.com/protect-and-defend-2/.

RESPONSE TO REQUEST FOR PRODUCTION NO. 128:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 129:

All DOCUMENTS and COMMUNICATIONS CONCERNING the statement that CERTAINTY “helps defend against bacteria and odors” in the April 24, 2015 publication titled “Protect and defend,” posted at scrubsmag.com, at https://scrubsmag.com/protect-and-defend-2/, including but not limited to clinical studies and test results.

RESPONSE TO REQUEST FOR PRODUCTION NO. 129:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 130:

All DOCUMENTS and COMMUNICATIONS CONCERNING the statement that CERTAINTY PLUS “resists fluids and stains” in the April 24, 2015 publication posted scrubsmag.com, at https://scrubsmag.com/protect-and-defend-2/, including but not limited to clinical studies and test results, without regard to time.

RESPONSE TO REQUEST FOR PRODUCTION NO. 130:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

*16REQUEST FOR PRODUCTION NO. 135:

All DOCUMENTS and COMMUNICATIONS CONCERNING statements made by YOU or on YOUR behalf on any form of social media CONCERNING CERTAINTY and CERTAINTY PLUS, including but not limited to the statements made in video posted to youtube.com, at https://www.youtube.com/watch?v=ooC4oKDCReg&feature=youtu.be.

RESPONSE TO REQUEST FOR PRODUCTION NO. 135:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing as it seeks documents going back to January 1, 2012; (ii) seeks information that is protected by the attorney-client privilege, work product doctrine and/or other applicable privilege or right to privacy, specifically including documents and communications between Responding Party and its attorney(s) relating to FIGS and this lawsuit; (iii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iv) seeks SPI's proprietary and confidential information.

REQUEST FOR PRODUCTION NO. 159:

All deposition and trial transcripts from any lawsuit YOU have filed against an industry competitor, including but not limited to deposition transcripts, trial transcripts, and YOUR discovery responses from (i) Strategic Partners, Inc. v. Vestagen Protective Technologies, Inc., C.D. Cal. Case No. 2:16-cv-05900-RGKPLA, and (ii) Strategic Partners, Inc. v. Koi Designs, LLC, C.D. Cal. Case No. Case No. [sic] 2:17-cv-00236-BRO-GJS.

RESPONSE TO REQUEST FOR PRODUCTION NO. 159:

SPI objects to this Request on the grounds it (i) is overly broad, unduly burdensome, and harassing to the extent that it seeks documents that are equally available to FIGS; (ii) is unduly burdensome, overly broad, and harassing to the extent it seeks documents and communications that are unrelated to FIGS and irrelevant to this lawsuit; and (iii) seeks information shielded by protective orders issued in the referenced matters.

It is unclear on the record whether the parties engaged in any meet-and-confer discussions besides the March 5, 2020 email. However, SPI notes in the Motion that in the interests of conserving judicial resources and expediting resolution of the case, it does not object to FIGS including in the Motion the issue concerning the request for documents from other litigation involving SPI. (Joint Stip. at 10 n.4.)

Because of the voluminous nature of the disputed RFPs and responses, the Court will not recite each of the requests and objections in this Order, but has attached the relevant requests, along with SPI's responses and objections as Appendix A. (See infra at 18-25.)

Throughout the Motion, FIGS notes that SPI's objections to FIGS's RFPs are identical. (See Motion at 16-38.) Consequently, FIGS outlines in detail its position in support of RFP No. 79. (Id. at 4-8.) And in support of RFP Nos. 80 through 130, it states that it incorporates its statements provided in support of RFP No. 79. (Motion at 16-36.) Likewise, SPI details its opposition to RFP No. 79 through 130 solely in the section of the Motion discussing RFP No. 79 (see id. at 11-15, discussed infra), and states that it incorporates that position as to RFP Nos. 80 through 130 (see id. at 16-36).

The Ninth Circuit distinguishes between false advertising cases and false comparative advertising cases. See TrafficSchool.com, Inc., 653 F.3d at 828-31. A false comparative advertising case is one in which a defendant makes alleged false or misleading statements in relation to a plaintiff, and where it is “reasonable to presume that every dollar defendant makes has come directly out of plaintiff's pocket.” Id. at 1131 (emphasis added) (citing, inter alia, U-Haul Int'l, Inc. v. Jartran, Inc., 681 F.2d 1159 (9th Cir. 2011) (newspaper ad falsely stated that defendant's rental trucks were bigger, newer, and more fuel-efficient than trucks in plaintiff's fleet)). In a false comparative advertising case, a plaintiff's products and advertising are squarely at issue because the defendant's alleged misstatements refer directly to those products. The Court concludes that the case at hand is not a false comparative advertising case.