*1 Before the Court are the parties' cross-Motions to Compel, each filed on June 30, 2021. (Dkt. Nos. 306, 309.) In its Motion, Defendant FIGS, Inc. (“Defendant” or “FIGS”) requests an order compelling responses from Plaintiff Strategic Partners, Inc. (“Plaintiff” or “SPI”) to its Requests for Production of Documents (“RFPs”) relating to communications between SPI and government actors.[1] (Dkt. No. 306 (“FIGS MTC”).) FIGS also submits a Declaration of Julia B. Cherlow, Defendants' counsel, in Support of its Motion with supporting exhibits. (Dkt. Nos. 306-1 (“Cherlow Decl.”), 306-2.)

In its Motion, SPI requests an order compelling further responses to its RFPs; Answers to its Interrogatories to FIGS and to FIGS's founder and co-CEO Catherine Spear; and awarding attorneys' fees. (Dkt. No. 309 (“SPI MTC”).) SPI seeks several categories of information: (1) documents relating to FIGS's claim that its products reduce hospital-acquired infection rates by 66 percent (“HAI Claim”); (2) documents relating to FIGS's claim that its products are liquid repellent (“Fluid Barrier Claim”); (3) answers to Interrogatories to Spear regarding the identity of a company she referred to in a public interview; (4) documents relating to FIGS's claim that it donated scrubs through its Threads for Threads program (“T4T Claim”); and (5) answers to Interrogatories to FIGS regarding its HAI and Fluid Barrier Claims and its claim that its products kill bacteria and infections immediately on contact (collectively, “Health Claims”). (See generally id.) SPI also submits a Declaration of Kevin S. Kim, Plaintiff's counsel, in support of its Motion with supporting exhibits. (Dkt. No. 310 (“Kim Decl.”).)

*2 On July 14, 2021, both parties filed Oppositions to each other's Motions, along with declarations of supporting counsel. (Dkt. Nos. 317-18.) On July 21, 2021, both parties filed Replies in Support of their respective Motions. (Dkt. Nos. 340, 343.) The Court, finding the matters suitable for decision without oral argument, vacated the hearings on the cross Motions and took the matters under submission. (Dkt. Nos. 319, 356.) The matters are now fully briefed and ready for decision.

For the reasons outlined below, the FIG's Motion is DENIED, and SPI's Motion is GRANTED in part, and DENIED in part.

I. The Pleadings

The operative pleading in this action is SPI's Fifth Amended Complaint (the “FAC”) filed on August 17, 2020. (Dkt. No. 152.) The Court previously provided a detailed summary of the factual allegations at issue in this action in its May 18, 2020 Order denying FIGS's motion to compel production of additional documents by SPI. (Dkt. No. 114).[2] Therefore, the Court assumes the parties are familiar with those allegations and will not repeat them here.

The FAC asserts claims against FIGS, Heather Hasson (FIGS's co-founder), and/or Spear for false advertising in violation of the Lanham Act, 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; conversion; breach of fiduciary duty; and aiding and abetting breach of fiduciary duty. (FAC ¶¶ 98-214.) 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 cite in future advertisements 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; attorneys' fees; and all further relief the Court deems just and proper. (Id. at p. 51-52.)

On August 31, 2020, Defendants filed an Answer to the FAC, generally denying SPI's allegations and asserting affirmative defenses. (Dkt. No. 162.)

On February 19, 2021, Defendants filed a Motion for Judgment on the Pleadings, arguing that SPI's claims should be dismissed for lack of cognizable legal theory or insufficient facts to support a legal claim. (Dkt. No. 260.) On February 26, 2021, SPI filed an Opposition to Defendants' Motion. (Dkt. No. 269.) And on March 5, 2021, Defendants filed a Reply in Support of the Motion. (Dkt. No. 270.) On August 10, 2021, after the parties filed the cross-Motions to Compel that are the subject of the instant Order, District Judge Holcomb entered an Order granting in part, and denying in part, Defendants' Motion for Judgment on the Pleadings. (Dkt. No. 368.) Specifically, District Judge Holcomb granted the motion with respect to SPI's claims for conversion and breach of fiduciary duty against Spear, unfair business practices in violation of § 17200 against all Defendants, and aiding and abetting breach of fiduciary duty against Hasson and FIGS; and he dismissed those claims without leave to amend. (See id. at 8-15.) District Judge Holcomb denied the motion with respect to SPI's remaining claims. (Id. at 4-8, 15.)

II. Pertinent Discovery Efforts

*3 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.) The Court later permitted the parties to propound additional discovery. (See, e.g., Dkt. No. 161, 176.) On March 16, 2021, the Court granted the parties' stipulation regarding the case schedule and amended discovery responses, setting June 9, 2021 as the deadline for this Court to hear disputes arising from written discovery. (Dkt. No. 275 at 2.) The parties' expert discovery cut-off was set to October 22, 2021. (Id.)

Between May 15, 2019 and January 12, 2021, SPI propounded nine sets of RFPs on FIGS. (Kim Decl. ¶ 2.) Between October 22, 2019 and June 24, 2021, FIGS produced documents in response to SPI's RFPs (Id.) Among its first set of RFPs were Nos. 22-23, 28-29, 31-33, and 39,[3] served on May 15, 2019, which sought documents relating to testing and studies performed by FIGS to support its HAI claim, and relating to the validity of FIGS's Fluid Barrier Claim. (SPI MTC at 4-5; Kim Decl. ¶ 4.) SPI also served requests seeking FIGS's communications with governmental and regulatory agencies. (Dkt. No. 318-1 ¶ 2 & Ex. A.) Also on May 15, 2019, SPI propounded its first set of Interrogatories on FIGS, including Nos. 3, 5, and 6, which sought information and test results relating to FIGS's HAI claim. (SPI MTC at 4-6; Kim Decl. ¶ 7.) On July 1, 2019, FIGS served its responses to the RFPs and Interrogatories; although it initially asserted boilerplate objections, it later agreed to produce some responsive documents. (SPI MTC at 4; Kim Decl. ¶ 8.) According to SPI, to date, FIGS has not produced documents responsive its RFPs seeking FIGS's communications with government entities. (Dkt. No. 318-1 ¶ 2.)

On April 27, 2020, SPI propounded a set of Interrogatories on Spear, including Nos. 22 and 23, which related Spear's comments during a public interview; in her response, Spear asserted boilerplate objections. (SPI MTC at 6; Kim Decl. ¶¶ 10-12.) On July 20, 2020, SPI propounded its fifth set of RFPs on FIGS, including Nos. 486-516, 554, 555, 564, 582, and 584, which sought documents relating to FIGS's donation program. (SPI MTC at 6-7; Kim Decl. ¶ 15.) On September 4, 2020, FIGS served its responses to SPI's fifth set of RFPs. (Kim Decl. ¶ 16.)

On November 25, 2020, FIGS served its third set of RFPs on SPI. (FIGS MTC at 2.) Among those RFPs were Nos. 296-99, which sought communications and documents relating to SPI's interactions with government actors regarding SPI's claims that FIGS had violated various state and federal statutes and regulations. (Id. at 2-3; Cherlow Decl. ¶¶ 2-3.) SPI refused to produce documents in response to those RFPs, objecting to them as irrelevant and overbroad. (FIGS MTC at 3; Cherlow Decl. ¶¶ 2-3.)

On December 23, 2020, SPI propounded its fourth set of Interrogatories on FIGS, including Nos. 32, 34, 35, 36, 38, and 39, which sought documents relating to the HAI, Fluid Barrier, and T4T claims. (SPI MTC at 8; Kim Decl. ¶ 16.) On January 22, 2021, FIGS served its responses to these requests. (Kim Decl. ¶ 17.)

On January 19, 2021 and April 16, 2021, SPI sent two meet-and-confer letters outlining the significance of Interrogatory Nos. 22 and 23 propounded on Spear, but as of the date of the Motion, Spear had not responded to those Interrogatories. (Kim Decl. ¶¶ 12-13.) On April 16, 2021, the parties exchanged meet and confer correspondences outlining their respective positions regarding the substance of the instant Motion. (SPI MTC at 8; Kim Decl. ¶ 25.)

*4 In an April 22, 2021 meet-and-confer call, the parties discussed several of the outstanding discovery issues, ultimately resolving some, but not all of the issues. (FIGS MTC at 3; Cherlow Decl. ¶ 6; Kim Decl. ¶ 25.) On May 13, 2021, the parties submitted the Joint Position Statements to the Court regarding the issues presented in the Motion. (SPI MTC at 8-9; Kim Decl. ¶ 22.) On June 7, 2021, SPI's counsel sent FIGS's counsel a meet and confer letter regarding outstanding discovery issues. (Kim Decl. ¶ 24.)

On June 9, 2021, the District Judge rejected the parties' stipulation to extend the Court's jurisdiction through September 1, 2021 to hear additional sets of discovery disputes. (Dkt. No. 295-96.) The District Judge set a briefing schedule on “Existing Written Discovery Disputes,” but did not include a schedule to extend the Court's jurisdiction to hear additional discovery disputes beyond the June 9, 2021 deadline. (Dkt. No. 296 at 2.)

On June 24, 2021, FIGS disclosed more than 25,000 additional pages of documents that were previously withheld from SPI, which SPI claims it has not been able to review in full before filing the Motion. (SPI MTC at 9; Kim Decl. ¶ 26.) The parties' Motions followed.

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.

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)).

The Court applies these settled principles here to analyze the parties' disputes concerning the numerous categories of information presented in the Motions. The Court addresses each Motion in turn below.

A. FIGS's Position

*5 FIGS's Motion seeks an order compelling SPI to produce documents responsive to its RFP Nos. 296-99, which concern SPI's communications with government actors. FIGS contends that because SPI alleges throughout the FAC that FIGS's products do not comply with various federal and state regulations, SPI cannot reasonably object that its communications with government agencies are irrelevant to its claims or FIGS's defenses. (FIGS MTC at 4.) FIGS argues that information relevant to SPI's allegations of regulatory violations are necessary to support its unfair business practices and unfair competition claims. (Id. at 5-6.) Thus, SPI's communications with government actors, to the extent they exist, are essential to the claims and defenses at issue in the case, and could be determinative of the outcome of the claims. (Id. at 6.)

FIGS also contends that any communications between SPI and government actors are likely to provide important and unprivileged evidence of SPI's legal theories of causation and damages. (Id.) FIGS believes it likely that any efforts by SPI to complain to government actors about FIGS would have included information on how FIGS's products or marketing statements negatively impacted the market and SPI's market position. (Id.) Thus, these SPI documents are “indisputably relevant” to the claims in the action. (Id. at 6-7.)

FIGS rejects SPI's attempt to object to these RFPs as overbroad. (Id. at 7.) FIGS notes that the requests are necessarily time-limited because FIGS did not exist until 2012 and even if SPI communicated with government actors consistently since then, the documents would be relevant (and thus, discoverable). (Id.) FIGS also rejects SPI's objections on grounds of third-party privacy rights and confidentiality concerns. FIGS maintains that SPI's complaints about FIGS do not implicate privacy or confidentiality concerns and, even if there are privacy concerns, there is a protective order in place that safeguards confidential information. (Id. at 7-8.) FIGS further notes that the fact that documents may contain confidential information does not defeat a party's discovery obligations. (Id. at 8.)

B. SPI's Opposition (Dkt. No. 318)

In its Opposition, SPI contends that it properly objected to FIGS's requests seeking SPI's communications with governmental entities. (Dkt. No. 318 at 3-6.) Fundamentally, SPI argues that none of FIGS's requests are relevant to SPI's false advertising claims, SPI does not assert any regulatory enforcement claims, and its state law claims are principally directed to the same conduct that gives rise to all of SPI's claims (i.e., false advertising) and not to alleged regulatory violations. (Id. at 3-4.) Additionally, in response to SPI's requests seeking FIGS's communication with governmental and regulatory agencies, FIGS objected to SPI's request as irrelevant; so, it cannot now claim that SPI's communications are relevant. (Id. at 4.)

SPI observes that courts routinely refuse to compel production of documents where the moving party objected and refused to produce the same category of documents. (Id.) Likewise, courts have refused to compel a result where a moving party has engaged in the same conduct it complains of as offensive. (Id. at 5.) SPI further argues that FIGS's request should be denied because each of its requests are overbroad and disproportionate to the needs of the case, as FIGS does not specify a time period for the materials it requests and there is no way to formulate a proper scope for the request. (Id.) Finally, courts have denied similar request to compel communications between a party and a regulatory agency that appear to be a fishing expedition into documents with little to no probative value. (Id.) SPI contends that because FIGS has failed to demonstrate the probative value of the documents, and the cases it cites are inapposite, the Court should deny its request to compel responses to its RFPs.

C. FIGS's Reply (Dkt. No. 335)

*6 In its Reply, FIGS reiterates that SPI's communications with government actors are relevant and the discovery sought is not barred by equitable principles. (Dkt. No. 335 at 4-6.) It contends that SPI's assertion that its claims under state law do not hinge on FIGS's regulatory violations is contradicted by the FAC, which plainly asserts that FIGS's alleged regulatory and statutory violations constitute unlawful business practices within the meaning of the relevant state law. (Id. at 4-5.) FIGS next distinguishes SPI's requests for FIGS's communications with governmental entities with FIGS's RFPs—SPI broadly sought all documents and communications related to FIGS's efforts to comply with various state statutes and regulations, while FIGS's RFPs are narrowly tailored and only seek information relating to SPI's communications with government actors regarding FIGS. (Id. at 5-6.) Finally, notwithstanding the foregoing issues, FIGS contends there is no legal basis for SPI to avoid its obligation to respond to FIGS's valid discovery requests, and the cases SPI cites to support its position are plainly distinguishable from the facts of this case. (Id. at 6.)

1. Documents Relating to SPI's Communications with Government Actors (FIGS's RFP Nos. 296-99)

FIGS seeks an order compelling disclosure of documents relating to SPI's relationship with government actors. Specifically, RFP No. 296 seeks documents and communications relating to this lawsuit provided by SPI to a government entity; RFP No. 297 seeks documents and communications relating to FIGS, Spear, and/or FIGS co-founder Heather Hasson provided by SPI to any government entity; RFP No. 298 seeks communications between SPI and any government entity; and RFP No. 299 seeks documents prepared by SPI relating to FIGS, Spear, and/or Hasson provided to any government entity. (Dkt. No. 306-2 at 49-51.) For the reasons outlined below, the Court concludes that these documents are neither relevant to the claims or defenses at issue in this case nor proportionate to the needs of the case within the meaning of Rule 26(b)(1).

In the FAC, SPI asserts that FIGS violated federal and state regulations and failed to register its products with the appropriate federal and state agencies. (See FAC ¶¶ 57, 93, 112-14 (asserting that FIGS violates EPA regulations by making false and misleading statements about the antimicrobial properties of its products without a study to support the claims); FAC ¶ 115 (asserting that FIGS violates state and federal regulations and engages in unfair competition by failing to register its products with the appropriate state and federal agencies).) In its Answer, FIGS denies these allegations and asserts that it has created products and engaged in business practices in conformity with applicable laws. (Dkt. No. 162 at ¶¶ 57, 114 & p. 23.) Nowhere in the FAC or Answer to the FAC do the parties discuss or place at issue SPI's relationship with government actors, the purported subject of FIGS's RFPs. Neither party alleges that SPI in any way communicated with any government entity about this lawsuit or about any Defendant. Thus, this category of documents is irrelevant to the claims and defenses at issue in this case and disclosure of SPI's documents and communications with government actors is not warranted. See Hope Med. Enters., Inc. v. Fagron Compounding Servs., LLC, Case No. 19-7748-CAS (PLAx), 2020 WL 2771233, at *8 (C.D. Cal. Mar. 31, 2020) (denying defendants' motion to compel response to RFP seeking “documents regarding any communications between ‘current and former agents, representatives or employees of [plaintiff] and the FDA regarding any Defendant’ ” because defendants had “not demonstrated that the information being sought is relevant to the claims or defenses in this action and proportional to the needs of the case”). Although FIGS asserts an unclean hands defense alleging that SPI made claims about its own products similar to FIGS's statements to which SPI now objects as false or misleading (Dkt. No. 162 at p. 27-28), FIGS does not claim that SPI flouted federal or state regulations or otherwise engaged in regulatory misconduct such that it should be entitled to examine SPI's communications with government actors.

*7 FIGS argues that SPI's communications with government entities “to the extent they exist” are relevant because evidence “that government agencies rejected SPI's complaints or that SPI raised different concerns than those highlighted in the FAC would substantially undermine SPI's claim that FIGS'[s] alleged activities at issue in this suit constituted an independently unlawful act.” (FIGS MTC at 6 (emphasis in original).) However, FIGS concedes that such documents may not exist and appears only to be testing new strategies for undermining SPI's claims without any reasoned basis that such attacks will draw blood. The Court will not authorize a speculative fishing expedition that appears untethered to the claims and defenses at issue in the case.

Further, FIGS's request for discovery on a speculative and tangential topic also exceeds the proportionality boundaries established under Rule 26(b)(1), as this discovery is of little significance in resolving any issue in the case as framed by the FAC. See FED. R. CIV. P. 26(b)(1). FIGS's argument that any communications between SPI and government actors may provide evidence of SPI's legal theories of causation and damages is unpersuasive. FIGS continues to rest on speculative assertions that it is “plausible” that SPI's attempts to complain to government actors about FIGS would have included information on how FIGS's products or marketing statements purportedly negatively impacted the medical apparel market. (Id.) As an initial matter, there is nothing in the pleadings to suggest that any such communications by SPI would have significance in resolving any claim or defense in the case. Moreover, the cases on which FIGS relies in making this argument are inapposite because they each concern situations where the parties put into issue the information the moving party now seeks—here, neither party has put SPI's communications with government actors into issue.

Accordingly, while FIGS's communications with government actors may be relevant to SPI's claims, SPI's communications with government actors are not relevant here. Therefore, FIGS's Motion is DENIED in full, as the dispute over documents pertaining to SPI's communications with government actors is the only surviving dispute raised in the Motion. (See supra n.1.)

A. SPI's Position

SPI seeks an order compelling responses to its RFP Nos. 22-23, 28-29, 31-33, 39, (documents relating to testing and studies performed by FIGS to support its HAI Claim; and documents concerning the fabric used in FIGS's products, the claims regarding the fluid repellency of FIGS's products, and the testing done by FIGS regarding the fluid repellency of its products); 564, 582, and 584 (documents relating to FIGS's T4T claim); answers to Interrogatories to FIGS Nos. 3, 5-6 (information and test results relating to FIGS's HAI Claim), 32, 34-36, 38, and 39 (requests concerning its Health Claims and to FIGS's T4T claim); and answers to Interrogatories to Spear Nos. 22 and 23 (requests regarding Spear's statements in public interviews in which she describes how she came up with the idea to start FIGS). (SPI MTC at 1, 22.)[4]

1. Documents Concerning FIGS's HAI Claim (RFP Nos. 22-23, 29, 31-33; Interrogatory Nos. 3, 5-6)

*8 SPI argues that FIGS's documents concerning its HAI claims are directly relevant to assessing the veracity of FIGS's advertising claims that its products reduce HAI by 66 percent, and SPI's ability to establish this falsity depends on these documents in FIGS's possession. (Id. at 11.) Moreover, Spear has confirmed the existence of these studies in public interviews and email communications. (Id. at 11-12; Kim Decl. ¶ 9 & Ex. 21-22.) SPI notes that FIGS has evaded its obligations to respond to SPI's documents requests, refusing to confirm or deny whether it had disclosed certain documents and therefore violating its prior disclosure agreements with SPI. (SPI MTC at 12-13.) SPI requests that if FIGS has already produced these studies that it identify the bates numbers of the document(s) reflecting the study; or, alternatively, if such documents do not exist, SPI requests that FIGS provide a supplemental response confirming that it has no such documents in its possession, custody, or control. (Id. at 13.)

2. Documents Concerning FIGS's Fluid Barrier Claim (RFP Nos. 22, 28, 32-33, 39)

SPI argues that records regarding the efficacy of FIGS's fluid barrier technology are directly relevant to determine the veracity of FIGS's marketing claims that its scrubs contained an effective fluid barrier and Defendants' knowledge as to the veracity of these claims. (Id. at 13-14.) SPI maintains that FIGS's agreement to only produce materials regarding the antimicrobial properties of the fabric used in its scrubs (as opposed to the liquid repellency properties) is insufficient. (Id.) SPI observes that Spear's public statements confirm that these tests exist. (Id. at 14.) To the extent FIGS claims that it has already produced these records, SPI requests that FIGS identify the bates number of the document(s) reflecting the test(s). (Id.)

3. Answers to Interrogatories Regarding the Identify of a Company Referenced by Spear in an Interview (Interrogatory Nos. 22-23)

SPI identifies a 2017 interview with Karl Ulrich from Penn Wharton Entrepreneurship (the “Ulrich Interview”) in which Spear claimed the idea to start FIGS while she was working at Citigroup, performing “diligence on [a] company,” which she called one of the “largest companies in the [medical apparel] space,” but which produced “a horrible product and outdated distribution model.” (Id. at 15; Kim Decl. ¶ 9.) SPI asserts that its Interrogatories No. 22-23 request that Spear identify the company referenced in the Ulrich Interview. (SPI MTC at 15.) It contends that this information is relevant and proportionate to SPI's claims for conversion, breach of fiduciary duty, and aiding and abetting thereof, which are premised on Spear's theft of SPI's confidential information from her prior employer and improper use of the information to launch FIGS. (Id.)

SPI asserts that FIGS's objection to these interrogatories—that SPI's claims are premised on allegations that Spear stole information while she was at Blackstone, not Citigroup—misconstrues the scope of discovery, which must be construed broadly to allow parties to define and clarify issues and need not directly relate to a particular issue. (Id. at 15-16.) At the very least, SPI's interrogatories are relevant to clarify how Spear developed the idea to launch FIGS, which goes directly to SPI's conversion and fiduciary duty claims, and to Defendants' defense that Spear did not steal SPI's confidential information while working at Blackstone. (Id. at 16.)

4. Documents Concerning FIGS's Donation Claim (RFP Nos. 564, 582, 584; Interrogatory Nos. 32, 34, 39)

SPI argues that it is entitled to documents to demonstrate the falsity of FIGS's claim that it donates a set of scrubs for every set of scrubs through its T4T program. (Id. at 16-18.) SPI contends that FIGS has in its possession and control documents confirming that it features prominently in its advertising and marketing this claim. (Id. at 16-17.) Despite SPI's request for documents to substantiate FIGS's one-for-one donations, including the donation accounting and tracking records kept by FIGS (Kim Decl., Ex. 16, 18), FIGS has only produced one single-page document stating the total number of sets it had donated, which does not verify any information critical to proving the alleged falsity of FIGS's claim (SPI MTC at 17-18).

*9 SPI states that FIGS is merely attempting to hide behind the Court's August 28, 2020 order, which FIGS believes forecloses discovery into the underlying materials related to its T4T claim. (Id. at 18.) SPI contends that the August 28, 2020 Order did not preclude SPI from obtaining any materials to substantiate the amount of donations FIGS claims to have made. (Id. at 18-19.) SPI rejects FIGS's argument about the effect of the August 28, 2020 Order, claiming SPI is not limited to FIGS's self-serving representations in the summary information previously produced and FIGS ignores the Court's subsequent statement that the underlying computation of FIGS's donation figures were discoverable. (Id. at 19; see also Dkt. No. 216.) Thus, SPI requests that the Court compel FIGS to produce the source documents and answers to interrogatories supporting its donation figure. (SPI MTC at 19.)

5. Answers to Interrogatories Concerning Documents Supporting its Health Claims (Interrogatory Nos. 35-36, 38)

SPI first notes that FIGS has objected to answering these interrogatories on the basis that SPI seeks information equally available to SPI and to FIGS, as SPI is in possession of FIGS's document production. (Id. at 19-20; Kim Decl., Ex. 19.) SPI rejects FIGS's objection for two reasons. First, it asserts that courts have unambiguously rejected FIGS's claim that information equally available to the propounding party is not discoverable, and have compelled parties in similar circumstances to identify by bates number the documents response to the interrogatories at issue. (SPI MTC at 20-21 (collecting cases).) Second, Federal Rule of Civil Procedure 33 requires the responding party to specify the records that must be reviewed in enough detail to enable the interrogating party to locate and identify them. (Id. at 21 (citing FED. R. CIV. P. 33(d)(1)).) Here, FIGS has failed to specify any records that would allow SPI to locate and identify for review. (Id.)

6. SPI's Request for Attorneys' Fees

Finally, SPI requests that should the Court grant its Motion, FIGS and Spear must pay reasonable expenses and attorneys' fees incurred in bringing the motion. (Id. at 21-22.) SPI argues that it has expended significant time and resources to obtain Defendants' compliance with their discovery obligations, has engaged in several meet-and-confer efforts, and Defendants have failed to provide SPI the discovery it needs to prepare the case. (Id. at 22.)

B. FIGS's Opposition (Dkt. No. 317)

In its Opposition, FIGS contends that the Court should deny SPI's Motion in its entirety. (See generally Dkt. No. 317.) First, it argues that the Court should reject SPI's attempts to obtain information about FIGS's T4T program, which is beyond the scope of discovery. (Id. at 1-4.) FIGS identifies several instances when this Court rejected SPI's broad RFPs concerning FIGS's T4T program, ordered FIGS to produce some limited information about the program, and despite FIGS's compliance with the Court's instructions, SPI persisted in its demands for additional information. (Id. at 2-3 (citing Dkt. No. 52 at 3-4 (September 2019); Dkt. No. 117 at 2-3 (May 2020); Dkt. No. 161 at 2, 4, 6 (August 2020)).) FIGS notes that the Court repeatedly found SPI's requests overbroad and they still are, as SPI's demand is similar to its earlier unsuccessful attempts to obtain the T4T information. (Id. at 3-4.) FIGS also argues that it should not be required to answer SPI's Interrogatories pertaining to the T4T claim because it is SPI's circuitous method of obtaining the same information. (Id. at 4.) Additionally, SPI has had the opportunity to depose FIGS's witnesses to inquire about the donation program. (Id.)

Next, FIGS argues that the Court should reject SPI's request for additional documents related to SPI's HAI Claim because FIGS has met its discovery obligations as to that claim. (Id. at 5-7.) FIGS states that it has provided and the Court has confirmed that it has produced all responsive documents containing the information SPI now requests. (Id. at 5 (citing Dkt. No. 317-1, Ex. 6 (May 2020 Transcript).) Despite SPI's allegation that FIGS is withholding documents on the basis of Spear's allusion to the existence of studies that SPI has not been able to locate in FIGS's document production, FIGS asserts that it has no obligation to identify which documents are responsive to which of SPI's RFPs and SPI provides no evidence that FIGS currently has in its possession, custody, or control the documents SPI requests. (Id. at 6-7.)

*10 FIGS contends that SPI's demand that FIGS identify by production number the support for certain (purported) advertising statements is premature. (Id. at 7-8.) FIGS avers that because its responses to SPI's requests seeking scientific information will likely change before the close of expert discovery in October 2021, the Court should not require FIGS to respond until then. (Id. at 7.) If the Court requires FIGS to respond now, FIGS claims its responses will be stale by the time expert reports and depositions are taken; thus, FIGS should have opportunity to develop the subject matter of the interrogatories through expert discovery and only if that discovery fails to answer the interrogatories should FIGS be required to supplement its responses. (Id. at 8.)

FIGS next contends that SPI's request for information about Spear's work at Citigroup is disproportionate to the needs of the case—SPI has not pleaded any claim that is related to Spear's employment at Citigroup and the demand is a mere fishing expedition. (Id. at 9.)

FIGS declares that after SPI filed its Motion, in an effort to narrow the issues before the Court, it has produced documents concerning the Fluid Barrier claim, which should resolve SPI's concerns regarding FIGS's responses to SPI's RFP Nos. 22, 28, 32, 33, and 39. (Id. at 9.) FIGS declines to identify by bates number any other documents it has produced in response to these discovery requests because it states that it has no obligation to do so, and SPI may not convert its RFPs into new discovery requests. (Id. at 9-10.)

FIGS claims that SPI anticipated FIGS's supplemental document production on June 24, 2021, as it had several months' notice of the production. (Id. at 10.) Conversely, SPI has produced no new documents since April 2020, despite agreeing in meet-and-confer efforts with FIGS that it would do so. (Id. at 10-11.) FIGS claims that SPI misrepresents its ability to access the documents produced on June 24, 2021 and argues that SPI has suffered no prejudice from FIGS's diligent compliance with its discovery obligations. (Id. at 11.)

Finally, FIGS argues that SPI's motion for attorneys' fees should be denied because there are genuine disputes about the issues raised over which reasonable minds could differ. (Id. at 12.) Moreover, SPI merely attempts to extract discovery to which it is not entitled and so, the Court should award FIGS its reasonable fees incurred in opposing SPI's Motion. (Id. at 12-13.)

C. SPI's Reply (Dkt. No. 343)

In its Reply, SPI contends that FIGS's Opposition confirms its abuse of the discovery process and improper withholding of responsive material that is relevant and critical to determining the veracity of FIGS's claims. (See generally Dkt. No. 343.) First, FIGS's belated production of test reports regarding the efficacy of its liquid repellency proves that these documents were improperly withheld; thus, SPI urges that sanctions are warranted for this delay. (Id. at 1-3.) Second, FIGS misrepresents that it has fully complied with discovery requests concerning its HAI Claim despite public statements from Spear reflecting that HAI studies have not been produced to SPI; thus, it must produce further responses and documents as to that information. (Id. at 1, 3-6) Third, the interrogatories seeking the identity of the company whose project Spear previously worked on are relevant to SPI's claims and proportionate to the needs of the case, and Spear makes no attempt to justify her failure to answer those interrogatories. (Id. at 1, 6-7.)

Fourth, SPI's interrogatories requesting information supporting FIGS's health claims are not premature nor do they require expert discovery as FIGS suggests; rather, they seek factual information in FIGS's possession, custody, and control. (Id. at 1-2, 7-9.) Fifth, FIGS misconstrues the Court's prior orders to preclude SPI's ability to obtain documents to verify its stated donation figure, SPI is entitled to test the veracity of FIGS's T4T advertising claim, and FIGS's own deposition witness has confirmed that such materials are readily accessible for production. (Id. at 2, 9-10.) Sixth, FIGS misstates the facts of its June 2021 document production and it should not be lauded for its incomplete last-minute disclosures. (Id. at 2, 10-12.) Finally, SPI reasserts that it is entitled to reasonable attorneys' fees as a consequence of FIGS's and Spear's misconduct. (Id. at 13-14.)

1. Documents Concerning FIGS's HAI Claim (SPI RFP Nos. 22-23, 29, 31-33; Interrogatory Nos. 3, 5-6)

*11 The first category of documents in SPI's Motion—documents and answers to interrogatories regarding FIGS's HAI claim—is indisputably relevant to the claims at issue in this litigation. SPI seeks documents pertaining to any testing or studies FIGS may have performed on the fabric used to make its garments (RFP Nos. 22, 32-33), and documents relating to and answers to interrogatories concerning facts, testing, and studies to support FIGS's claim that its products reduce HAI rates by 66 percent (RFP Nos. 23, 29, 31; Interrogatory Nos. 3, 5-6). (See Dkt. No. 310-3 at 9-11 (RFPs); Dkt. No. 310-6 at 6-8 (Interrogatories).) SPI asserts throughout the FAC that FIGS's statements about its products' efficacy at reducing HAI is false and/or misleading. (See generally FAC.) Therefore, the objective facts that support FIGS's claim and any tests FIGS performed that support or undermine its HAI statements would be probative of the liability issues at the core of this case. Likewise, the information SPI seeks in these documents requests and interrogatories is proportional to the needs of the case because they go to the main issues at stake in this action (the alleged false advertising) and FIGS has unique access to the relevant information. If FIGS conducted or directed the performance of the tests, FIGS would presumably have access to the information and the information could be determinative of FIGS's liability. Further, FIGS presents no evidence or argument that it would be unduly burdened by producing this information about testing its own products for these characteristics that have been highly touted as central elements of FIGS's market strategy.

FIGS objects to SPI's requests, arguing it has already met its discovery obligations for this category of information. (Dkt. No. 317 at 5-7.) Specifically, FIGS states that on May 27, 2020, defense counsel represented that FIGS had applied the court-ordered search terms to its document collection, including combinations of the terms “66 percent” and “reduction in infection”; it believed “those terms captured all of the relevant documents that are related” to the topic; and it “already produced all the responsive documents that [it] ha[d] on that topic.” (Id. at 5; Dkt. No. 120 at 20-21.) The Court thereafter accepted FIGS's representation “that FIGS has already produced all responsive documents in light of the Court agreed and approved search terms that included quite a number of search terms directly targeted to identify infection rates, documents that may have mentioned the 66 percent hospital-acquired infections and those things”; it found that “[t]here's nothing further at this point to be done as to[ ] [the topic] based on what FIGS is producing in discovery and has produced in discovery.” (Dkt. No. 120 at 27.)

Although the Court generally presumes the accuracy of a party's representation that its document production is complete, here, SPI has presented convincing “contrary evidence” that additional documents likely exist such that FIGS is not yet relieved of its discovery obligations as to its HAI claim. Munoz v. InGenesis STGi Partners, LLC, 2015 WL 13559890, at *3 (S.D. Cal. Aug. 4, 2015). Specifically, SPI notes that in the 2017 Ulrich Interview, Spear stated that FIGS had conducted a study with Project CURE and discovered that its products reduced spreading of infection between doctors and patients by 66 percent. (SPI MTC at 11-12 (citing Kim Decl. ¶ 9).) SPI also offers that in a speech given at or to Johns Hopkins Hospital, Spear confirmed that FIGS had performed a study to test the impact of FIGS's products on hospital infection rates. (Id. at 12 (citing Kim Decl., Ex. 21).) Finally, SPI provides a December 2018 email between Spear and another FIGS executive, in which Spear responded to the executive's request for a study proving that FIGS's products reduced HAI rates by 66 percent by confirming that she had such a study. (Id. (citing Kim Decl., Ex. 22).) Thus, it appears that testing and studies pertaining to FIGS's HAI Claim—i.e., documents responsive to RFP Nos. 22, 23, 29, 31, 32, and 33—exist and must be produced if they have not been produced already. Moreover, even if FIGS applied the relevant search terms and produced the documents it recovered using those terms, FIGS's discovery conduct does not relieve it of the obligation to provide responses to SPI's Interrogatories Nos. 3, 5, and 6 here, which request that FIGS specifically “identify” the objective facts and test results that support its claim that its products reduce HAI rates. (See Dkt. No. 310-6 at 6-8.) FIGS does not argue that it has already provided this information and so, it must do so now.

*12 FIGS does not dispute that Spear made any of the above-noted statements. Rather, FIGS suggests that SPI may not have been able to locate the tests in FIGS's document production. (Dkt. No. 317 at 6.) Despite SPI's claim that it has not received any of the studies referenced in Spear's interviews or statements (Dkt. No. 343 at 5), assuming arguendo FIGS has produced the testing and studies responsive to SPI requests, FIGS must provide a sworn declaration identifying by bates numbers the documents it has produced in in this case relating to the data and studies supporting the HAI claim, i.e., it must respond to SPI's Interrogatory No. 38. See Satchell v. Fedex Express, 2006 WL 2884318, at *8 (N.D. Cal. 2006); see also MGA Ent., Inc. v. Nat'l Prods. Ltd., Case No. CV 10-7083-JAK (SSx), 2012 WL 12884021, at *4-*5 (C.D. Cal. Jan. 20, 2012) (ordering party to provide “a list or chart indicating by Bates number which documents are responsive” to the requests for production because it was unclear “which documents are responsive to a particular request”).

FIGS also states that as long as it produced documents that were kept in the regular course of business (which it contends it has), it need not identify which documents in its production are responsive to which of SPI's RFPs. (Dkt. No. 317 at 6.) But SPI does not request that FIGS identify which documents are responsive to each of the disputed RFPs here. Rather, SPI requests that FIGS identify by bates number the documents reflecting the studies and testing pertaining to the HAI Claim. If FIGS has, in fact, produced the documents SPI seeks in the disputed RFPs, then FIGS must identify the documents and put this dispute to rest.

Furthermore, regardless of FIGS's position as to SPI's requests for documents, FIGS has not has provided any of the information related to the objective testing for properties relating to HAI that SPI seeks in Interrogatory Nos. 3, 5, or 6. Interrogatory No. 3 asks that FIGS “IDENTIFY all facts to support YOUR assertion that “FIGS antimicrobial fabric reduces hospital-acquired infection rates by 66%”; Interrogatory No. 5 seeks information sufficient to “IDENTIFY all facts to support YOUR assertion that FIGS's antimicrobial washes “[r]educe the risk of hospital-acquired infection by 66%”; and Interrogatory No. 6 asks that FIGS “IDENTIFY all test results related to each and every test performed on YOUR antimicrobial fabric to support YOUR assertion that “FIGS antimicrobial fabric reduces hospital-acquired infection rates by 66%.” For all the reasons outlined above, the information sought by these Interrogatories is clearly relevant and proportional to the needs of the case. FIGS offers no reason—compelling or otherwise—why it need not provide answers to them.

FIGS also contends that it has no further obligation to SPI to produce the disputed category of documents because it conducted a reasonable search and produced responsive documents. (Dkt. No. 317 at 6.) However, FIGS has only produced documents it captured by applying isolated search terms. (Dkt. No. 120 at 21.) Notably, several of the disputed RFPs do not contain the terms “66 percent” or “reduction in infection” (see Dkt. No. 310-3 at 9-11 (RFP Nos. 22, 31-33)). Thus, it appears that FIGS may not have exhausted its search efforts and the tests and/or studies SPI seeks, which purportedly exist based on Spear's public statements and email correspondence, may have evaded those earlier efforts. But even if FIGS has exhausted its search efforts for documents, it would still be required to answer SPI's Interrogatories about FIGS's HAI claim. Alternatively, if FIGS has already produced the documents to SPI and SPI simply has not located them among FIGS's disclosures, FIGS can promptly resolve this issue by identifying by bates number the documents reflecting the testing and studies performed concerning its HAI Claim, see Satchell, 2006 WL 2884318, at *8, and by either answering “separately and fully in writing under oath” SPI's Interrogatories Nos. 3, 5, and 6 or by “specifying the records that must be reviewed in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could” as required by Rule 33. See FED. R. CIV. P. 33(b)(3) & (d)(1).

*13 Finally, FIGS contends that “simply because a document may have at one time existed within a party's possession, custody, or control prior to the commencement of litigation, does not mean it currently does.” (Dkt. No. 317 at 6 (emphasis in original).) FIGS's contention is not an unconditional denial of the existence of the testing and studies at issue here. If the tests that SPI requests do not exist, or are no longer in FIGS's possession, custody, or control, then FIGS must plainly say so.

For the foregoing reasons, the Court concludes that the documents SPI seeks pertaining to testing and/or studies relating to FIGS's HAI Claim—specifically, those documents referenced by Spear in the Ulrich Interview, in her speech at or to Johns Hopkins Hospital, and in her communications with FIGS executives—are relevant to the claims and defenses at issue in the case and are proportional to the needs of the case, particularly in light of the importance of the issues at stake and the parties' relative access to the information. Likewise, answers to the Interrogatories Nos. 3, 5, and 6, which also seek information regarding the HAI claim are similarly relevant to SPI's claims and proportional to the needs of the case. Thus, FIGS must produce the responsive documents in its possession, custody, or control to SPI. If FIGS has already produced these studies, it must identify the bates number of the document(s) reflecting the studies and tests. Satchell, 2006 WL 2884318, at *8. Additionally, FIGS must provide complete answers responsive to Interrogatory Nos. 3, 5, and 6.

Accordingly, SPI's request to compel production of documents in response to RFP Nos. 22-23, 29, 31-33 or, alternatively, to identify by bates number the documents it has produced in this category is GRANTED. SPI's request to compel answers to Interrogatory Nos. 3, 5, and 6 is also GRANTED.

2. Documents Concerning FIGS's Fluid Barrier Claim (SPI RFP Nos. 22, 28, 32-33, 39)

The second category of documents in SPI's Motion—documents concerning the fabric used in FIGS's products (RFP Nos. 22, 32-33), FIGS Fluid Barrier claim (RFP No. 39), and testing done by FIGS to substantiate that claim (RFP No. 28)—is also relevant and proportional to the needs of the case. Like FIGS's HAI claim, SPI alleges throughout the FAC that FIGS's claim that its products are liquid or water repellent is false and/or misleading. (See generally FAC.) Therefore, documents concerning the fluid barrier properties in the fabric FIGS used to make its products, the liquid repellency of that fabrics, or any tests done to substantiate the claim of liquid repellency are clearly probative of FIGS's statement that its products contained an effective fluid barrier. Likewise, for the same reasons as the documents pertaining to the HAI Claim, the documents are proportional to the needs of the case.

In its Opposition, FIGS avers that it has identified some previously-unproduced test results that were not captured with the parties agreed-upon search terms, and has produced those documents to SPI, which it believes fulfills its discovery obligations as to this category. (Dkt. No. 317 at 9.) In its Reply, SPI objects to the tardiness of FIGS's document production and requests that the Court compel further responses reflecting compliance with RFP Nos. 22, 28, 32-33, and 39 and sanction FIGS for providing the documents only after SPI filed its motion to compel. (Dkt. No. 343 at 2-3.)

At this juncture, FIGS has represented that its document production concerning its Fluid Barrier Claim is complete. (Dkt. No. 317 at 9.) Although FIGS has legitimate concern with the timing of FIGS's production, it offers no contrary evidence to show that additional documents exist beyond those which FIGS states that it produced after SPI filed its Motion to Compel. Accordingly, the Court presumes the truthfulness of FIGS's statement that it has complied with its discovery obligations as to the Fluid Barrier Claim. See Munoz, 2015 WL 13559890, at *3. SPI's request to compel production of this category of documents is DENIED as moot, and its request in its Reply for FIGS to provide supplemental responses reflecting compliance with the disputed RFPs is also DENIED.

*14 However, Federal Rule of Civil Procedure 37(a)(5)(A) provides, in relevant part, “if disclosure or requested discovery is provided after the motion [to compel] was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Thus, FIGS is entitled to an opportunity to be heard why sanctions should not be awarded pursuant to Rule 37(a)(5)(A). As discussed below, SPI may file and serve a regularly noticed motion for reasonable expenses, including attorneys' fees, along with supporting documentation. The briefing schedule for FIGS's opposition and any reply will be governed by the Local Rules 7-9 and 7-10. A hearing on SPI's fee motion should be scheduled on the Court's regular motion calendar.

3. Answers to SPI Interrogatories to Spear Regarding A Company Spear Referred to in an Interview (Interrogatory Nos. 22-23)

The third category of discovery SPI seeks is not relevant to any of SPI's surviving claims. SPI's Interrogatories Nos. 22 and 23 to Spear request that she identify the company that she was referring to in the Ulrich Interview, which she called “one of the largest companies in the space,” and on whose behalf she did diligence while employed at Citigroup. (Dkt. No. 310-8 at 5.) The identity of the company that Spear was referring in the interview would potentially bear on SPI's conversion, unfair business practices, and fiduciary duty claims. SPI alleges that Spear stole its confidential information from her prior employer, in violation of her fiduciary duties to that employer; and she used that information to launch FIGS, which directly competed with SPI unfairly using the unlawfully obtained confidential information. (See FAC ¶¶ 127-35, 159-214.) However, on August 10, 2021, District Judge Holcomb dismissed SPI's conversion, unfair business practices, and fiduciary duty claims against Spear with prejudice. (Dkt. No. 368 at 10-15.) Thus, if the information SPI seeks from Spear is not relevant to any of SPI's other claims, SPI is not entitled to discovery relating only to claims the Court has dismissed. See In re Bridgepoint Educ., Inc., 2014 WL 3867495, at *1 (S.D. Cal. Aug. 6, 2014).

SPI does not argue and it is not clear to the Court how the information SPI seeks from Spear is relevant to SPI's surviving federal false advertising, unfair business practices, or state false advertising claims against FIGS, or to its intentional interference with prospective economic relations claims against all Defendants. (See FAC ¶¶ 98-126, 136-58.) The identity of the company Spear mentioned in the Ulrich Interview is immaterial to whether FIGS's advertising statements were truthful or misleading. Likewise, SPI's unfair business practices and intentional interference claims against FIGS are premised entirely on FIGS's alleged false and/or misleading statements made about its products, and how those statements adversely impacted SPI's business. (See id. ¶¶ 109-26.) Thus, the information SPI seeks from Spear by these Interrogatories is not relevant to SPI's remaining claims in the case.

Moreover, the information requested is not proportional to the needs of the case in terms of the importance of the remaining issues in the litigation. Although Spear would face little burden or expense by answering the Interrogatories and she could quickly identify the company to which she was referring in the Ulrich Interview, the information SPI seeks has little importance to the issues at stake in the litigation and will not in any way aid in resolving SPI's outstanding claims.

Accordingly, SPI's request to compel answers to these Interrogatory Nos. 22 and 23 to Spear is DENIED, and Spear need not provide answers to these interrogatories.

4. Documents Concerning FIGS's Donation Claim (SPI RFP Nos. 564, 582, 584; Interrogatory Nos. 32, 34, 39)[5]

*15 The fourth category of information SPI seeks concerns FIGS's marketing claim that it donated a set of scrubs for every set of scrubs it sells through its “Threads for Threads” program, i.e., its “T4T Claim.” Specifically, SPI seeks documents evidencing that it actually donated 610,000 scrubs through the T4T program (RFP No. 564), documents relating to costs and expenses associated with the donation of 610,000 scrubs and with all scrubs FIGS donated during the T4T program time frame (RFP Nos. 582, 584), and answers to interrogatories concerning the number of scrubs FIGS donated annually between 2013 and 2020, how many scrubs FIGS donated after it stopped making the claim that it donated one pair of scrubs for each pair sold (if it made such a claim), and the entities or individuals used to conduct logistics, transport, shipping, and delivery for the donations (Interrogatory Nos. 32, 34, 39). (Dkt. No. 310-17 at 73, 88-89; Dkt. No. 310-19 at 10-11, 14.) For the reasons discussed below, although the granular information about the T4T program may be relevant, the Court concludes that additional discovery responsive to SPI's RFPs on the T4T Claim are not proportional to the needs of the case. Additionally, answers to SPI's interrogatories concerning this category of information are not relevant to the claims at issue in this case.

Over the course of this litigation, the Court has considered the appropriate scope of donation-related discovery and has expressed concern that the breadth of discovery Plaintiff has sought regarding FIGS's donations is not proportional to the needs of the case. (See, e.g., Dkt. No. 52; Dkt. No. 117; Dkt. No. 161 at 5.) In May 2020, the Court found that FIGS's donated scrubs were directly relevant to the claims and defenses at issue in the case because Plaintiff alleged that FIGS falsely represented that for every set of scrubs sold, FIGS donated one set of scrubs. (Dkt. No. 117 at 2.) That conclusion remains true today. In response to SPI's request that FIGS produce documents concerning FIGS's purported representations about the number of scrubs it has donated, the Court ordered FIGS to produce a single summary document identifying the total number of donated scrubs and “top ten” locations that received those donations. (Id. at 2-3.) The Court did not require FIGS to specify the number of scrubs donated to any particular location or entity and did not require FIGS to identify each geographic location or entity that received donated scrubs. (Id. at 3.)

In August 2020, after FIGS provided the summary document the Court had ordered and in response to SPI's further attempts to extract discovery from FIGS concerning its donations, the Court noted that SPI's request for documents that “include manufacturing records, import and export records, order records, donation requests, donation receipts, donation distribution confirmation records and the like” was overbroad and not proportional to the needs of the case. (Dkt. No. 161 at 4-6.) The Court further noted that if SPI needed confirmation that FIGS actually donated the number of scrubs identified in the discovery it already provided, it could readily obtain that information via deposition, and it was not necessary for FIGS to search for, review, and/or produce the documents SPI sought at the time. (Id. at 6.)

So too here. Although FIGS's donated scrubs are generally relevant to the claims at issue in the case because SPI alleges that FIGS made false representations about its donation program, SPI's request for documents showing that it actually donated 610,000 scrubs through its T4T program (RFP No. 564) is facially overbroad. Moreover, it is not clear how documents relating to the costs and expenses associated with the donations during the T4T program time frame (RFP Nos. 582, 584) is proportional to the needs of the case in terms of the importance of the discovery in resolving the issues in the case. As the Court stated in its August 2020 Order, if SPI needed confirmation that FIGS actually donated the number of scrubs stated in the summary document that FIGS provided, it could have obtained that information in a deposition. In fact, in February 2020, the Court granted SPI's request that FIGS produce a Rule 30(b)(6) witness to testify about the scrubs FIGS donated. (Dkt. No. 142 at 3; Dkt. No. 161 at 6.) SPI now argues that it is not precluded from requesting additional documents to substantiate the number of donations FIGS claims to have made.[6] (SPI MTC at 18-19.) In so arguing, SPI entirely misconstrues the Court's August 2020 Order, which rejected SPIs efforts to use documents requests to require FIGS to produce highly granular and sweeping information about the T4T program that is of little relevance to the claims and defenses in the action.

*16 SPI confirms that it deposed FIGS's Rule 30(b)(6) representative about the T4T program and the deponent “was unable to answer how many sets of scrubs were actually donated in any given period of time, making it impossible for SPI to verify the accuracy of FIGS's donation claim.” (Dkt. No. 343 at 9.) However, the deponent “confirmed the existence and location of documents to verify FIGS's 1-for-1 donations that have not been produced.” (Id. at 10 (emphasis in original).) SPI argues that it is entitled to additional document production based on this testimony (id.), but the Court disagrees. In the FAC, SPI claims FIGS's statements about its donations are false and/or misleading. This deposition testimony is arguably probative of that claim and barring any evidentiary objection, SPI may use this deponent's testimony against FIGS. Any additional documents to corroborate this testimony would be unnecessarily cumulative.

Thus, the Court will not require FIGS to produce additional documents on this issue and SPI's Motion must be DENIED as to RFP Nos. 564, 582, and 584. FIGS need not produce additional documents responsive to those requests.

Turning to the Interrogatories at issue, in the August 2020 Order, the Court denied without prejudice SPI's request that the Court order FIGS to provide written interrogatory responses to interrogatories about the T4T donation program; it reasoned that SPI had never served interrogatories and the Court could not compel FIGS to respond to hypothetical discovery requests to which it had not had the opportunity to answer and/or object. (Dkt. No. 161 at 6-7.) In December 2020, SPI served, inter alia, Interrogatory Nos. 32, 34, and 39 (Dkt. No. 310-18), and in January 2021, FIGS served responses to those interrogatories (Dkt. No. 310-19). Thus, the reasoning of the Court's August 2020 Order does not apply to the interrogatories presently before the Court because SPI's requests are no longer hypothetical. The operative question now is whether the information sought by the interrogatories is relevant and proportional to the needs of the case. The Court finds that the information sought by these interrogatories is neither relevant nor proportional to the needs of the case.

In the FAC, SPI asserts that in an effort to garner media attention, build corporate goodwill, and influence consumers to pay a higher price for its products, FIGS falsely advertised that it donated hundreds of thousands of scrubs internationally, that the scrubs contain antimicrobial properties, that it donated 90,000 sets of scrubs in 26 countries, and that the scrubs reduced the hospital-acquired infection rate by 66 percent in the areas it donated. (FAC ¶¶ 14, 54-56.) FIGS has already provided a document stating that it has donated over 600,000 pairs of scrubs internationally. The Court does not see how requiring FIGS to disclose the annual breakdown of its donations (Interrogatory No. 32) would be anything but unnecessarily cumulative of the information it has already provided. It is certainly not probative of SPI's allegations about the falsity of FIGS's statements regarding the health properties of the scrubs it donated. It is also not clear why information about the number of scrubs FIGS donated after it stopped making claims that SPI alleges are false (Interrogatory No. 34) is relevant to those allegations.

Further, looking at the conditional language of this Interrogatory, SPI does not seem to know if FIGS even stopped making such a claim. But even if FIGS did do so, any donations it made after making such a claim would have no bearing on the truth or falsity of the claim itself at the time it was originally made in the marketplace. Finally, similar to how the Court found in August 2020 that “[i]t is entirely unclear how requiring FIGS to produce manufacturing records, export records or donation requests is proportionate to the needs of the case in terms of the importance of the discovery in resolving the issues in the case” (Dkt. No. 161 at 4 (internal quotation marks omitted)), it is likewise unclear how the identities of the entities or individuals used to conduct logistics, transport, shipping, and delivery for the donations (Interrogatory No. 39) would assist the Court in determining whether FIGS's statements about its donation program are true or not. SPI has had the opportunity depose a FIGS witness to confirm or negate FIGS's claims about its donation program. The Court remains unpersuaded that FIGS should be compelled to answer SPI Interrogatories Nos. 32 (annual breakdown of donations 2013-2020), 34 (number of scrubs donated after FIGS no long made the allegedly false claims about the T4T program), and 39 (identity of entities used for logistics/shipping/distribution of donated scrubs) in order to confirm that donations were actually made.

*17 Additionally, answers to these interrogatories are not proportional to the needs of the case as this level of detail about the T4T program is not important to the central issues at stake in the litigation or to resolving any of the remaining claims.

Accordingly, SPI's request to compel production of documents responsive to RFP Nos. 564, 582, and 584; and its request to compel answers to Interrogatory Nos. 32, 34, and 39 are DENIED.

5. SPI's Motion: Answers to Interrogatories Concerning Documents Supporting FIGS's Health Claims (Interrogatory Nos. 35-36, 38)

Interrogatory No. 35 requests that FIGS identify by bates number the documents it has produced that support its Fluid Barrier Claim. (Dkt. No. 310-19 at 11.) Interrogatory No. 36 requests that FIGS identify by bates number the documents it has produced that support its claim that its scrubs “kill infection and bacteria immediately upon contact.” (Id.) And Interrogatory No. 38 requests that FIGS identify by bates number the documents it has produced that support its HAI Claim.

As an initial matter, for the reasons discussed supra concerning the discovery request relating to FIGS's HAI Claim, the Court explained that if FIGS has already produced documents relating to its HAI Claim, it must provide a sworn declaration identifying by bates numbers the documents it has produced (see supra at 18). See Satchell, 2006 WL 2884318, at *8; see also MGA Entm't, Inc., 2012 12884021, at *4-*5; cf. O'Connor v. Boeing N. Am., Inc., 185 F.R.D. 272, 277 (C.D. Cal. 1999) (“To answer an interrogatory, ‘a responding party has the duty to specify, by category and location, the records from which answers to interrogatories can be derived.’ ” (quoting Rainbow Pioneer No. 44-18-04A v. Haw.-Nev. Inv. Corp., 711 F.2d 902, 906 (9th Cir. 1983)). Accordingly, SPI's Motion with respect to Interrogatory No. 38 is GRANTED.

If FIGS has not produced any documents that support its HAI Claim, it must produce documents in its possession, custody and control responsive to SPI's RFP Nos. 22-23, 29, 31-33; and provide complete responses Interrogatory Nos. 3, and 5-6—all of which concern the HAI Claim. If FIGS has already produced some documents that support its HAI Claim, but has not produced all such documents, it must provide a sworn declaration identifying by bates numbers the documents it has produced concerning its HAI Claim and must respond to SPI's outstanding RFPs and Interrogatories within thirty days of the date of this Order.

Turning to Interrogatory No. 35, concerning the Fluid Barrier Claim, to the extent FIGS contends it has produced the responsive information in its document production, then FIGS must provide a sworn declaration identifying the documents it has produced concerning that claim. For the reasons discussed supra, documents pertaining to the Fluid Barrier Claim are relevant to the claims involved in this case. (See supra at 19.) Further, FIGS states that it has “identified a small number of previously-unproduced tests results ... which are related to the challenged liquid repellency claims” and has “produced these tests to SPI.” (Dkt. No. 317 at 9.) Thus, if that “small number” of documents comprises all of the documents relating to FIGS's Fluid Barrier Claim, FIGS would expend minimal effort and expense providing a sworn declaration identifying by bates number the documents it has produced concerning that claim in response to Interrogatory No. 35. However, FIGS is not relieved of its obligation to review its earlier document productions to ensure that the declaration it provides includes all of the documents it has provided concerning its products' liquid repellency properties. Accordingly, SPI's Motion respect to Interrogatory No. 35 is GRANTED.

*18 Concerning Interrogatory No. 36, it is clear that documents pertaining to FIGS's claim that its scrubs “kill infection and bacteria immediately upon contact” are relevant to SPI's claims because SPI asserts in the FAC that FIGS's claim is false and/or misleading. Likewise, for the same reasons as those discussed regarding FIGS's HAI and Fluid Barrier Claims, FIGS's answer to this Interrogatory is both relevant and proportional to the needs of the case. Thus, SPI's Motion with respect to Interrogatory No. 36 is GRANTED. Here too, FIGS must provide a sworn declaration identifying by bates numbers the documents it has produced concerning its claim that its scrubs “kill infection and bacteria immediately upon contact.” See Satchell, 2006 WL 2884318, at *8

FIGS contends that SPI's Interrogatories call for expert discovery and, thus, are premature. (Dkt. No. 317 at 7-8.) However, it is unclear to the Court why expert discovery would be necessary for FIGS to comply with these requests, which appear only to call for FIGS's specification of documents it has already provided. It is undisputed that FIGS made advertising claims that its products were liquid repellent, killed infection and bacteria immediately upon contact, and reduced HAI rates by 66 percent. SPI merely requests that FIGS identifies the documents it has already produced that support those advertising claims. SPI is entitled to the information it now seeks because the information is relevant to the claims in this case and FIGS has the knowledge and ability to respond to the interrogatories without substantial burden. See Pom Wonderful, LLC v. Tropicana Prod., Inc., 2010 WL 11526735, at *2 (C.D. Cal. Mar 15, 2010) (finding that information regarding the formulation of defendant's product was relevant where plaintiff's case concerned whether defendant's advertising misled consumers regarding the contents of the product). Indeed, the information SPI seeks is uniquely in FIGS's possession. Thus, FIGS's argument is not persuasive and as directed herein, it must provide complete answers to SPI's Interrogatories No. 35, 36 and 38.

6. SPI's Request for Attorneys' Fees

Rule 37(a)(5)(A) provides that where a motion to compel is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees,” unless: