*1 On January 27, 2022, plaintiff Better Care Plastic Technology Co., Ltd. filed a Motion to Compel additional discovery responses from defendant Gredale, LLC. Docket no. 55. The parties' positions are set forth in a joint stipulation (“JS”). Plaintiff's arguments are supported by the declaration of its counsel Ashley M. Koley (“Koley Decl.”) and exhibits. Defendant's arguments are supported by the declarations of its CEO Gregory Lorber (“Lorber Decl.”) and counsel Paul A. Bost, as well as exhibits accompanying Bost's declaration.

On February 15, 2022, defendant filed a supplemental memorandum (“D. Supp. Mem.”), a supplemental declaration from its CEO Lorber, and a supplemental declaration and exhibits from its counsel Bost. Docket no. 58. That same day, plaintiff filed a supplemental memorandum (“P. Supp. Mem.”), a supplemental declaration from its counsel (“Koley Supp. Decl.”), and exhibits. Docket nos. 59, 63.

The court considered the papers submitted and held a hearing on March 1, 2022. The court now grants in substantial part plaintiff's motion for the reasons discussed below.

As explained in the July 26, 2021 Order Granting Defendant's Motion to Dismiss, this case concerns the advertising and sale of patient examination gloves. Docket no. 42. The court borrows from that order's summary of the issues in this case:

*2 Docket no. 42 at 2-3.

The close of all discovery, including hearings on discovery motions, is set for May 16, 2022. Docket no. 57. The deadline for initial designation of expert witnesses is April 4, 2022. Id.

Federal Rule of Civil Procedure 26(b) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). To be relevant, the information sought “need not be admissible in evidence”; however, it must be “proportional to the needs of the case.” Id. In determining the needs of the case, the court “consider[s] the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to 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. A “relevant matter” under Rule 26(b)(1) is any matter that “bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978). Relevancy should be “construed ‘liberally and with common sense’ and discovery should be allowed unless the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)).

Plaintiff moves to compel supplemental responses to multiple interrogatories and production requests (“RFPs”). It also seeks monetary sanctions from defendant under Federal Rule of Civil Procedure 37.

A. Interrogatory Number 1

Interrogatory number 1 asks defendant to “[d]escribe in detail the facts and circumstances concerning Defendant's acquisition of all At Issue Products.” JS at 3. Defendant objected on the grounds that the interrogatory is overbroad, unduly burdensome, vague, ambiguous, and seeks confidential information.[1] Id. Subject to these objections, defendant initially stated that it “did not acquire the patient examination gloves at issue.” Id. Defendant subsequently supplemented its response twice, ultimately indicating:

JS at 3-4.

*3 The court sustains defendant's overbreadth objection to the extent plaintiff seeks a detailed account of all potentially responsive facts. See JS at 4 n.4 (defining “describe” as “set forth fully and unambiguously every fact relevant to the subject of the Interrogatory”); Calleros v. Rural Metro of San Diego, Inc., 2017 WL 4391714, at *5 & n.3 (S.D. Cal. Oct. 3, 2017) (finding definition of “describe in detail” as “calling for a complete description of all facts which are pertinent to the act, occurrence or event in question” is not proportional). Even so, defendant's response is woefully insufficient, and it must provide more responsive information.

District courts have broad discretion in deciding whether an interrogatory is unduly burdensome or overbroad. See 8B Wright, Miller, & Marcus, Federal Practice and Procedure § 2176 (3d ed. Apr. 2021 Update). To determine whether the interrogatory should be answered, courts are guided by the proportionality standard set forth in Rule 26. Here, the court can only conduct a limited proportionality analysis because neither party presents sufficient evidence to allow for a more complete inquiry. Indeed, at the March 1 hearing, the parties' estimates of the amount in controversy ranged from zero to unknown.

Nonetheless, the issues at stake in this action are particularly important given the product at issue, patient examination gloves, and its significance during the global pandemic. See SAC ¶¶ 7, 9. The amount in controversy is unclear, so this factor is neutral. Defendant has better access to the information that the interrogatory requests, which weighs in favor of discovery. Defendant argues the interrogatory is unduly burdensome but it does not provide any concrete evidence of its resources and alleged burden. See Big Baboon Corp. v. Dell, Inc., 723 F. Supp. 2d 1224, 1229 (C.D. Cal. July 2, 2010) (“For a burdensomeness argument to be sufficiently specific to prevail, it must be based on declarations or other evidence.”). Finally, the requested information goes to the core of the disputed issues in this case, namely, defendant's role in the alleged violations. Thus, on balance, the court finds that a more complete response is proportional to the needs of the case.

Again, plaintiff is not entitled to every fact that could conceivably be responsive. But plaintiff is entitled to material facts, including those requested in its part of the JS. See JS at 4. Specifically, the court orders defendant to expand on its last response to this interrogatory by providing at least the following information: (1) how and why defendant facilitated the import and shipment of the At Issue Products on behalf of Stop C-19, including how defendant came to do this in the first instance; (2) the individuals and entities defendant corresponded with regarding the purchase and shipment of the At Issue Products; (3) the dates Lorber communicated with Bell (approximate dates are sufficient if the exact dates are unknown); and (4) the gist of the communications between Lorber and Bell.

To the extent the court's order conflicts with defendant's other objections, they are overruled. First, defendant's alleged confusion with the term “acquisition” is not well-founded. See Thomas v. Cate, 715 F. Supp. 2d 1012, 1030 (E.D. Cal. 2010) (“The party objecting to discovery as vague or ambiguous has the burden to show such vagueness or ambiguity by demonstrating that more tools beyond mere reason and common sense are necessary to attribute ordinary definitions to terms and phrases.” (internal quotation marks omitted)). Second, the additional information that plaintiff requests is reasonably subsumed within the scope of the interrogatory. See Safeco of Am. v. Rawstron, 181 F.R.D. 441, 445 (C.D. Cal. 1998) (subparts are counted as a single interrogatory if they are “logically or factually subsumed within and necessarily related to the primary question” (internal quotation marks omitted)). Plaintiff is simply asking for more information about the what, who, why, how, and when of the primary inquiry. Third, defendant is correct that a deposition is the better vehicle to ascertain the details of conversations. See 8B Wright, Miller, & Marcus, Federal Practice and Procedure § 2177 (3d ed. Apr. 2021 Update). But the court is not ordering defendant to provide all details. With respect to conversations, defendant must provide only the gist of what was discussed. Defendant must provide its supplemental interrogatory response within 14 days.

B. Interrogatory Number 3

*4 Interrogatory number 3 asks defendant to describe in detail “the facts and circumstances concerning Defendant's relationship with Tianjin Hongray PPE, including identifying the names of any individuals that Defendant communicates with at Tianjin Hongray PPE concerning the acquisition, manufacture, distribution, and/or sale of At Issue Products.” JS at 7. Defendant objected on the grounds that the interrogatory is overbroad, unduly burdensome, vague, ambiguous, and seeks confidential information. Id. Subject to these objections, defendant initially stated that it “does not have a relationship with Tianjin Hongray PPE.” Id. Defendant subsequently supplemented its response twice, ultimately indicating:

JS at 7-8.

The court again sustains defendant's overbreadth objection to the extent discussed above. Plaintiff is not entitled to every possible responsive fact, only material ones. See Calleros, 2017 WL 4391714, at *5 & n.3. Nevertheless, the court agrees with plaintiff that some of the additional information it requests should be provided, namely, the date (or approximate date if the exact date is unknown) on which defendant was introduced to Tianjin, and how that introduction came to happen. See JS at 8. On the other hand, the court cannot see how the exact number of communications between defendant and Tianjin is reasonably responsive or subsumed into the primary question. See id. Plaintiff may be attempting to inquire about the extent of the relationship, which the court agrees is responsive. To that end, the court orders defendant to provide an explanation of the extent of its relationship with Tianjin, including how much business they conduct with each other and how often. All of these details are logically subsumed within the core of the interrogatory. See Safeco, 181 F.R.D. at 445.

Finally, to the extent defendant is withholding additional responsive information based on its vagueness/ambiguity objection, the court overrules that objection. Defendant fails to show how the term “relationship” could possibly be vague or ambiguous in the context of this litigation. See Thomas, 715 F. Supp. 2d at 1030. Defendant must supplement its response to interrogatory number 3 within 14 days.

C. Interrogatory Number 10

Interrogatory number 10 asks defendant to “state your contention for why you believe you may use Plaintiff's 510(k) Number to promote, advertise, and sell At Issue Products and identify any authority supporting your contention.” JS at 12-13. Defendant objected that this interrogatory is overbroad, unduly burdensome, disproportional, vague, ambiguous, and seeks irrelevant information and legal argument. See JS at 13. Defendant has provided two responses to this interrogatory so far, which state that: “The patient examination gloves at issue are authentic and were sold into commerce with Plaintiff's authorization[.] Further, Defendant did not make trademark “use” of Plaintiff's 510(k) Number.... Defendant has not used Plaintiff's 510(k) Number to promote, advertise, or sell the patient examination gloves at issue.” Id.

First, the requested information is clearly relevant given defendant's response that the gloves at issue are authentic and were sold with plaintiff's authorization. Second, the court sustains defendant's objection to providing authorities supporting its contentions. See JS at 14-15; Brady v. Grendene USA, Inc., 2014 WL 4925578, at *6 (S.D. Cal. Sept. 26, 2014) (“A proper contention interrogatory seeks the facts that support a party's contention, not the legal bases.” (citation omitted)). Third, the court agrees with defendant that the question at issue is not whether it has used plaintiff's 510(k) number, but rather, whether defendant contends it may use the number. See JS at 15-16; Thomas, 715 F. Supp. 2d at 1029-30 (an interrogatory may call for a legal conclusion that relates to the facts of the case). Although unclear, defendant appears to answer in the affirmative by stating that “[t]he patient examination gloves at issue are authentic and were sold into commerce with Plaintiff's authorization.” Defendant must clarify whether it intended to answer in the affirmative or not.

*5 Fourth, the court rejects defendant's argument that it does not have to provide the factual bases for its disputed conclusions because plaintiff only asks for defendant's contentions. JS at 14; Brady, 2014 WL 4925578, at *6 (interrogatories may properly seek the factual bases for a contention). The interrogatory is reasonably understood to ask for the factual bases of defendant's contention even if it does not include the magic phrase “factual bases.” Fifth, defendant argues that it should not have to provide facts regarding an issue on which plaintiff has the burden of proof – the origin of the gloves at issue. See JS at 14. But defendant cannot hide what it knows simply because the information may assist plaintiff and hurt defendant's case. On the other hand, defendant does not have duty to search for facts regarding an issue on which it does not have the burden of proof. Thus, the court only orders defendant to provide responsive facts that it currently knows support its contentions on this issue, including facts supporting its conclusion that the gloves at issue are authentic and that they were sold with plaintiff's permission. Defendant must provide its supplemental response within 14 days.

Finally, the parties dispute the truth of defendant's claim that it has not used plaintiff's 510(k) number. See JS at 13-15. But again, that is not the point of the interrogatory as the court understands it. The parties' dispute is better addressed as it applies to interrogatory number 6.

D. Interrogatory Number 6

Interrogatory number 6 asks defendant to identify “all goods and services offered for sale, sold, provided or intended to be offered for sale, sold, or provided by or for Defendant in the United States under or in connection with any At Issue Product and/or Plaintiff's 510(k) Number.” JS at 10. Defendant objected on the grounds that the interrogatory is overbroad, unduly burdensome, vague, ambiguous, and seeks privileged and confidential information. Id. Subject to these objections, defendant responded that it “has not sold and does not intend to sell to [sic] any goods or services under Plaintiff's 510(k) Number.” Id.

The court agrees with defendant that the interrogatory is vague as to the universe of products it is referring to. See JS at 11-12. Plaintiff's reference to goods and services offered for sale, sold, or provided “under” any At Issue Product makes no sense. It is also unclear, in the context of this case, what plaintiff means by goods and services offered for sale, sold, or provided “in connection with” any At Issue Product. The only part of this interrogatory that is unambiguous is the one seeking information regarding “goods and services offered for sale, sold, provided or intended to be offered for sale, sold, or provided by or for Defendant in the United States under or in connection with ... plaintiff's 510(k) number.” Defendant appears to concede that it understands this part of the interrogatory. See JS at 12.

Defendant's response is problematic for two reasons. First, responding that defendant “has not sold and does not intend to sell” does not actually clarify whether defendant has ever (1) offered or intended to offer for sale; (2) intended to sell; or (3) provided or intended to provide goods or services associated with plaintiff's 510(k) number. Defendant argues that the phrase “provided ... by or for Defendant” is ambiguous. See JS at 12. The court disagrees. The Merriam-Webster Online Dictionary defines “provide” as “to supply or make available (something wanted or needed)” or “to make something available to.” See www.merriam-webster.com/dictionary/provide. This definition is easily applied to the circumstances of this case. See Thomas, 715 F. Supp. 2d at 1030.

Second, defendant is limiting its response based on its position that it “has never used Plaintiff's 510(k) Number, including in any dealings it had with Stop C-19 or Tianjin Hongray PPE.” See JS at 12. The court recognizes that defendant may not want to admit a disputed fact in responding to this interrogatory – whether it intentionally used plaintiff's 510(k) number in its dealings with Tianjin, Stop C-19, or any other third parties. But plaintiff is entitled to know the extent to which defendant has dealt with products that defendant currently knows are or have been associated with plaintiff's 510(k) number. Defendant can identify those goods and services without admitting that it used plaintiff's 510(k) number. Defendant must provide its supplemental response to interrogatory number 6 within 14 days.

*6 Although the court is here simply ordering defendant to supplement its response to this and other discovery requests, the court strongly cautions defendant regarding its response to date. Defendant is correct that in most circumstances, whether or not a discovery response is truthful is a matter to be resolved at trial, not in a motion to compel. See JS at 12 (quoting Lal v. Felker, 2015 WL 7736874, at *2 (E.D. Cal. Dec. 1, 2015)). But that is not always the case. Here, the court has grave concerns about the veracity of defendant's representations to plaintiff and the court.

Defendant has repeatedly claimed that it was not involved in acquiring, marketing, or selling the allegedly counterfeit gloves at issue. See, e.g., Koley Decl., Ex. A (“D. 8/16/21 Supp. Resps. to Rogs”) at 5 (“Defendant did not acquire the patient examination gloves at issue.”); JS at 5 (claiming that defendant is “merely the facilitator of the import and shipment of the gloves on behalf of Stop C-19”). But during his recent deposition, defendant's Chief Strategy Officer Aaron Zeri contradicted this narrative. Among other things, Zeri testified that he and other employees of defendant were involved in: negotiating and processing the sale of the At Issue Products (see Koley Supp. Decl., Ex. A at 34:4-8, 119:11-120:19, 121:23-123:8, 124:14-20); marketing them (see id. at 77:1-20); and sending product samples to customers (see id. at 121:5-22). In addition, defendant stores at least some At Issue Products in its warehouses and will fulfill customer orders from those locations. See id. at 125:4-126:19.

Notably, as it relates to interrogatory number 6, Zeri appeared to admit that defendant has highlighted plaintiff's 510(k) number as a selling point to customers. Specifically, on one of its websites, www.gredaleppe.com, defendant posted a Stop C-19 brochure that included a copy of plaintiff's 510(k) letter from the FDA. See Koley Decl., Ex. F. Zeri agreed that by doing so, defendant “was attempting to inform potential customers that its gloves are demonstrated to be safe under plaintiff's 510(k) number.” See Koley Supp. Decl., Ex. A at 174:21-175:2. In fact, Zeri testified that he and two other employees of defendant might have sent the brochure to prospective customers. See id. at 77:1-20.

In response to these revelations, defendant's CEO Gregory Lorber first states that defendant's primary website is www.gredale.com, not www.gredaleppe.com. Lorber Decl. ¶ 2. That is beside the point; defendant does not deny that it operates the www.gredaleppe.com website, which is obviously geared to attracting customers. Among other things, the website touts defendant's experience as a reliable source of PPE, lists available products, and allows customers to request a quote. See Koley Decl., Ex. F. Second, Lorber claims that the brochure at issue was outdated and included on the website by mistake. Lorber Decl. ¶ 3. Lorber states the gloves advertised on the website were not sourced from a company purporting to sell gloves under plaintiff's 510(k) number. Id. But that statement contradicts Zeri's testimony that several of defendant's employees used the brochure to promote products to customers.

In sum, there is evidence that defendant has done what it denies doing – acquiring, marketing, and selling the gloves at issue, all while using plaintiff's 510(k) number. Untruthful discovery responses made in bad faith may result in sanctions far more severe than the monetary sanctions plaintiff requests in its supplemental memorandum, especially if defendant's discovery responses and tactics obstruct the orderly and expeditious resolution of this litigation and hinder plaintiff's ability to prepare for trial. See Englebrick v. Worthington Indus., Inc., 944 F. Supp. 2d 899, 908-12 (C.D. Cal. 2013) (dismissing case where plaintiff's false discovery responses interfered with rightful decision of the case); Eagle Access Control Sys. Inc. v. USA Power Gate, Inc., 2008 WL 11342684, at *3-5 (C.D. Cal. Mar. 6, 2008) (striking answer where “defendant's dishonest responses to plaintiff's discovery requests were made in bad faith and threaten to interfere with the rightful decision of this action”). At best, it appears defendant recklessly made material representations in its responses to date without a reasonable investigation. At worst, defendant may be intentionally misleading plaintiff and the court. Neither is acceptable.

*7 At this time, the only issue before the court is the sufficiency of defendant's discovery responses, not whether defendant should be sanctioned for abuse of process. The court also recognizes there may be more to the story, which may be good or bad for defendant. Nonetheless, defendant and its counsel are now on notice of the court's concerns. Defendant may decide to maintain its position that it had a limited role in the alleged wrongdoing. It will be up to plaintiff to later bring a motion for sanctions if it believes the evidence supports a finding of discovery abuse.

E. RFP Number 4

RFP number 4 requests all communications between defendant and Tianjin Hongray PPE. JS at 17. Defendant objected to this RFP on the grounds that it is overbroad, unduly burdensome, disproportional, and that it seeks irrelevant or confidential information. JS at 18. Subject to these objections, defendant responded:

JS at 18.

The court sustains in part defendant's overbreadth and relevance objections (see JS at 19-20), and narrows the interrogatory to communications concerning the issues in this case, including the At Issue Products and plaintiff's 510(k) number. In any event, defendant claims that it is no longer in possession, custody, or control of any responsive communications. See JS at 20. Lorber, defendant's CEO, claims that he alone communicated with Tianjin on behalf of defendant. Lorber Decl. ¶ 4. He claims that he communicated with Tianjin via phone and the application WeChat, and that he no longer has the WeChat communications. Id. He alleges that he did not back up his WeChat messages but actually deleted them at times to free up memory on his phone. See id. He also claims that he understands Tianjin could have deleted messages unilaterally as well. See id.

Plaintiff argues that defendant's claim that it does not have responsive documents is far-fetched. JS at 19. Plaintiff contends there must be paper communications on, at least, defendant's instructions to Tianjin. See id. But this argument ignores that such communications could have been verbal. On the other hand, plaintiff has presented persuasive evidence tending to show that defendant's efforts to search for responsive documents may not have been reasonable under the circumstances.

First, Zeri, defendant's Chief Strategy Officer, testified that although he might possess relevant emails, he has not searched his email account for responsive documents in this case. See Koley Supp. Decl., Ex. A at 77:1-20, 162:13-16. In fact, he did not learn of this lawsuit until after plaintiff propounded its first set of discovery, and as of the date of his deposition, nobody had asked him to search his records for relevant documents. See id. at 162:17-163:25. Second, as discussed before, defendant denied involvement in the marketing and selling of the gloves at issue. See D. Supp. Mem. at 1. But in its supplemental memorandum, defendant now states that “certain documents and communications relating to the acquisition, marketing, and sale of the gloves at issue were transmitted through @gredale.com email accounts.” Id. Third, in response to RFP number 7, defendant responded that it did not have any responsive documents in its possession, custody, or control. See JS at 21. In its supplemental memorandum, however, defendant reveals that it may have some responsive emails. See D. Supp. Mem. at 2.

*8 Given its concerns with defendant's representations, the court finds good cause to order defendant to conduct an additional search for responsive documents. Within 14 days, defendant must produce all responsive documents it locates, and also must provide a declaration, under oath, by an agent of defendant, describing the steps defendant took to identify potentially responsive documents, their custodians, and their locations. See Unilin Beheer B.V. v. NSL Trading Corp., 2015 WL 12698382, at *7 (C.D. Cal. Feb. 27, 2015) (ordering an explanation of search efforts).

F. RFP Number 1

RFP number 1 requests documents “sufficient to identify all of your products that you have claimed or claim to be authorized to be sold under Plaintiff's 510(k) Number.” JS at 16. Defendant objected to this RFP on the grounds that it is vague, ambiguous, unintelligible, and implies that defendant needed plaintiff's authorization to sell products covered by plaintiff's 510(k) number. Id. Subject to these objections, defendant responded that “it is not in possession, custody, or control of any responsive documents” and “is not withholding any responsive, non-privileged documents based on the objections it has asserted.” Id.

The court overrules defendant's vagueness objection. JS at 17. There is nothing ambiguous about plaintiff's request for documents concerning all products that defendant claims, or has claimed, it is authorized to sell using plaintiff's 510(k) number. See Thomas, 715 F. Supp. 2d at 1030. Defendant maintains there is nothing to produce because it has never claimed to be authorized to sell any gloves under patient's 510(k) number. See JS at 17. But in light of Zeri's testimony, the court is not persuaded by defendant's contention. Indeed, in response to interrogatory number 10, defendant asserts that it had plaintiff's authorization to sell at least some products under its 510(k) number. See JS at 13 (“The patient examination gloves at issue are authentic and were sold into commerce with Plaintiff's authorization.”).

Accordingly, the court orders defendant to produce all responsive documents regarding the products it refers to in interrogatory number 10. In addition, defendant must investigate whether its position – that it has never claimed to be authorized to sell any gloves under patient's 510(k) number – is still correct given Zeri's testimony, and to conduct a new search for responsive documents. Within 14 days, defendant must produce all responsive documents it locates, as well as a declaration, under oath, by an agent of defendant, describing the steps defendant took to identify potentially responsive documents, their custodians, and their locations.

G. RFP Number 7

RFP number 7 requests all communications with third parties that reference “Hongray.” JS at 20. Defendant objected on the grounds that the RFP is overbroad, unduly burdensome, disproportional, vague, ambiguous, and seeks irrelevant and confidential information. See id. Subject to these objections, defendant responded that it is not in possession, custody, or control of any responsive documents. See JS at 21.

First, the court agrees with plaintiff that defendant's vagueness objection is frivolous. See JS at 22. The interrogatory seeks communications between defendant and third parties in which the term “Hongray” appears, plain and simple. See Thomas, 715 F. Supp. 2d at 1030 (responding party must use common sense in interpreting discovery requests). Second, the court sustains defendant's overbreadth and relevance objections in part (see JS at 22), and narrows the interrogatory to responsive communications regarding the At Issue Products or plaintiff's 510(k) number.

*9 Third, although defendant initially maintained that it had no responsive documents (see JS at 22-23), it now claims to have found some records (see D. Supp. Mem. at 2). Defendant claims it is in the process of producing these documents to plaintiff. D. Supp. Mem. at 2. But that promise is insufficient to assuage the court's concerns regarding defendant's efforts to date to comply with its discovery obligations. Accordingly, the court orders defendant to conduct a new search for responsive documents. Within 14 days, defendant must produce all responsive documents it locates, as well as a declaration, under oath, by an agent of defendant, describing the steps defendant took to identify potentially responsive documents, their custodians, and their locations.

H. RFP Number 13

RFP number 13 requests all documents and communications “concerning Defendant's consideration, selection, sourcing, manufacture, and distribution of all At Issue Products.” JS at 23. Defendant objects that this RFP is overbroad, unduly burdensome, vague, ambiguous, and seeks privileged and confidential information. See id. Defendant claims that no responsive documents exist because it did not consider, select, source, manufacture, or distribute the At Issue Products. JS at 23, 25.

In light of Zeri's representations at his deposition, the court is not convinced that defendant has never considered, selected, sourced, or distributed At Issue Products. Thus, the court orders defendant to investigate whether its position is correct given Zeri's testimony, and conduct a new search for responsive documents. Within 14 days, defendant must produce all responsive documents it locates, as well as a declaration, under oath, by an agent of defendant, describing the steps defendant took to identify potentially responsive documents, their custodians, and their locations.

Plaintiff also argues that defendant must produce responsive documents in Stop C-19's possession, custody, and control. JS at 24. The court agrees with defendant that this RFP does not ask for documents reflecting Stop C-19's consideration, selection, sourcing, manufacture, and distribution of At Issue Products. See JS at 25. To the extent Stop C-19 is in possession, custody, and control of responsive documents regarding defendant's conduct, the court finds that plaintiff has not quite shown that defendant has a legal right to obtain responsive documents from Stop C-19.

Federal Rule of Civil Procedure 34(a)(1) requires parties to produce responsive documents within their “possession, custody, or control.” “Control is defined as the legal right to obtain documents upon demand.” U.S. v. Int'l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989). The focus is on legal control rather than a party's “practical ability to obtain the requested documents.” In re: Citric Acid Litig., 191 F.3d 1090, 1107-08 (9th Cir. 1999). The party seeking discovery bears the burden of proving that the opposing party has legal control. Id. Nevertheless, the party responding to discovery has an independent duty to conduct a reasonable inquiry into the factual basis of its discovery responses. Valdez v. Genesis Healthcare LLC, 2021 WL 5989963, at *6 (C.D. Cal. Sept. 7, 2021). A party responding to a Rule 34 production request is under an affirmative duty to seek responsive documents from its employees, agents, and others subject to its control. See id. (citation omitted).

Since International Union and In re: Citric Acid, multiple courts in this district have considered a variety of factors to determine whether a party has control over a non-party company for purposes of discovery, including: (1) complicity in storing or withholding documents; (2) commonality of ownership; (3) exchange or intermingling of directors, officer or employees; (4) exchange of documents in the ordinary course of business; (5) any benefit or involvement by the non-party corporation in the transaction; (6) involvement of the non-party corporation in the litigation; and (7) significant sharing of business resources. See, e.g., Quinn-White v. Novartis Pharms. Corp., 2018 WL 6074547, at *2 (C.D. Cal. Sept. 4, 2018) (citing Uniden Am. Corp. v. Ericsson Inc., 181 F.R.D. 302, 306 (M.D.N.C. 1998)); QC Labs v. Green Leaf Lab, LLC, 2019 WL 6797250, at *9 (C.D. Cal. July 19, 2019) (citing Uniden, 181 F.R.D. at 306).

*10 “In addition to this absolute form of legal control, courts have also found that one corporation controls another in the situation where one is the alter ego of the other corporation.” QC Labs, 2019 WL 6797250, at *8 (internal quotation marks omitted). In dealing with alter egos, “the court credits substance over form and ignores the separate corporate entities in order to protect against fraud and deceit. In essence, the court decrees legal control based on the actual control arising from the misuse and abuse of the corporate form.” Id. (internal quotation marks omitted). Courts should carefully examine the “actual relationship” between companies “when one is a party and the other a non-party with claimed control of responsive documents, in order to guard against not just fraud and deceit, but also sharp practices, inequitable conduct, or other false and misleading actions whereby corporations try to hide documents or make discovery of them difficult.” Id. at *5 (internal quotation marks omitted).

Here, plaintiff's showing is insufficient for the court to find either that defendant has legal control over Stop C-19's documents or that Stop C-19 is an alter ego of defendant. In support of its arguments, plaintiff claims that one of defendant's managers, Lee Hirsch, has the authority to obtain Stop C-19 records. See P. Supp. Mem. at 3; Koley Supp. Decl., Ex. A at 117:3-118:1. But that is not exactly what the deposition transcripts says. Instead, it merely shows that Hirsch can access certain Stop C-19 records through some unexplained “process.” See Koley Supp. Decl., Ex. A at 117:16-118:1; Citric Acid Litig., 191 F.3d at 1108 (insufficient that non-party has previously voluntarily provided documents to responding party in the past). Plaintiff also claims that Hirsch and defendant's CEO are officers of Stop C-19 and that the two companies share the same address, but neither of these claims is supported by a citation to evidence in the record. See P. Supp. Mem. at 3. Plaintiff further argues that legal control exists because the companies provide services to each other. See id. Needless to say, however, there is nothing necessarily suspicious about two companies providing services to each other. In sum, plaintiff fails to show that Stop C-19 has a legal duty to provide documents to defendant upon demand.

At the March 1 hearing, defendant all but acknowledged Stop C-19 is its alter ego, but the court will not at this time order defendant to produce documents in the exclusive possession and control of Stop C-19. The court recognizes defendant claims that Stop C-19 is currently collecting documents to produce in response to a subpoena from plaintiff. D. Supp. Mem. at 2. Thus, plaintiff may still be able to get the documents it seeks, and the issue of whether defendant should be ordered to produce Stop C-19's documents will be moot. If Stop C-19 does not produce all the subpoenaed documents, plaintiff may move to compel Stop C-19 to provide an adequate response to the subpoena, and the court will be open to reconsidering this issue in this case.

I. RFP Number 14

RFP number 14 requests all documents “sufficient to identify the geographic regions in the United States in which Defendant has or has caused to be advertised, promoted, marketed, displayed, distributed, or sold, or plans or intends to advertise, promote, market, display[,] distribute, or sell, either directly or through others, any At Issue Products.” JS at 27. Defendant objects to this RFP on the grounds that it is vague, ambiguous, and seeks confidential information. Id. Subject to these objections, defendant responded that it had no responsive documents in its possession, custody, or control. JS at 28.

The court agrees with defendant that arranging for and facilitating the importation and shipment of the At Issue Products does not necessarily mean defendant caused the products to be advertised, promoted, marketed, displayed, distributed, and sold through Stop C-19. See JS at 29. But in light of Zeri's testimony at his recent deposition, the court is not persuaded by defendant's claim that it “has not taken any action with respect to the At Issue Products except to facilitate their shipment and importation to the U.S.” Id. Thus, the court orders defendant to investigate whether its position is still correct given Zeri's testimony, and to conduct a new search for responsive documents. Within 14 days, defendant must produce all responsive documents it locates, as well as a declaration, under oath, by an agent of defendant, describing the steps defendant took to identify potentially responsive documents, their custodians, and their locations.

J. RFP Number 23

*11 RFP number 23 requests documents “sufficient to identify any person to or with whom Defendant markets, sells, or distributes or intends to market, sell, or distribute any At Issue Products.” JS at 29. Defendant objects that this RFP is vague, ambiguous, and seeks confidential information. Id. Subject to these objections, defendant responded that it is not in possession, custody, or control of any responsive documents. JS at 29-30.

As an initial matter, as far as the court can tell, defendant admits that it distributed At Issue Products to Stop C-19. See JS at 30-31. Part of the RFP seeks documents “sufficient to identify any person to ... whom Defendant markets, sells, or distributes or intends to market, sell, or distribute any At Issue Products.” JS at 29 (emphasis added). Thus, defendant must produce all documents identifying Stop C-19 as one of the entities to which defendant distributes the At Issue Products.

In light of Zeri's testimony, it appears that defendant also marketed, sold, or distributed the At Issue Products to other entities, independently or in coordination with Stop C-19. Thus, the court orders defendant to investigate whether its position to the contrary is still correct given Zeri's testimony, and to conduct a new search for responsive documents. Within 14 days, defendant must produce all responsive documents it locates, as well as a declaration, under oath, by an agent of defendant, describing the steps defendant took to identify potentially responsive documents, their custodians, and their locations.

Finally, for the reasons previously discussed, the court will not now order defendant to produce responsive documents in Stop C-19's possession, custody, or control. Defendant also objects to the RFP to the extent it seeks documents identifying entities to or with whom Stop C-19 marketed, sold, or distributed the At Issue Products. JS at 32. Although it is unclear whether the RFP requests such documents, the court agrees with defendant that the focus of the RFP is on defendant, not Stop C-19.

K. RFP Number 32

RFP number 32 requests documents “sufficient to show the annual volume of sales (in dollars and units) of all At Issue Products sold, directly or indirectly, by Defendant.” JS at 32. Defendant objects that the RFP is overbroad, vague, ambiguous, and seeks confidential information. Id. Subject to those objections, defendant claims it does not have any responsive documents in its possession, custody, or control. Id.

Defendant's arguments avoid the key questions in this discovery request: First, did defendant sell the At Issue Products it acquired from Tianjin to Stop C-19 or anyone else? Second, has defendant ever sold any At Issue Products indirectly through Stop C-19? If the answer to either or both of these questions is yes, then information regarding those sales is responsive and must be produced. The court overrules defendant's vagueness objection to the term “indirectly,” which is reasonably applied to this context. See Thomas, 715 F. Supp. 2d at 1030.

Further, for the reasons previously discussed, the court the court is not persuaded by defendant's claim that it has never sold, directly or indirectly, any At Issue Products. Thus, the court orders defendant to investigate whether its position is still correct given Zeri's testimony, and to conduct a new search for responsive documents. Within 14 days, defendant must produce all responsive documents it locates, as well as a declaration, under oath, by an agent of defendant, describing the steps defendant took to identify potentially responsive documents, their custodians, and their locations.

*12 Other than that, the court will not order defendant to produce responsive documents in Stop C-19's possession, custody, or control. Defendant also objects to the RFP to the extent it seeks documents regarding Stop C-19's sales of At Issue Products. JS at 34. But defendant will have to produce such documents to the extent those sales were indirect sales by defendant.

L. Plaintiff's Request for Sanctions

Plaintiff requests sanctions under Federal Rule of Civil Procedure 37 in the event the court grants its Motion to Compel. P. Supp. Mem. at 4-5. Rule 37(a)(5) provides that the prevailing party on a discovery motion is entitled to an award of its reasonable expenses incurred in bringing or opposing the motion, including attorney's fees, except no payment should be ordered if: (1) the motion was filed before the moving party made a good faith effort to resolve the dispute; (2) the losing party's position was substantially justified; or (3) other circumstances make award of expenses unjust.

The court denies sanctions at this point because plaintiff did not make its request until it filed its supplemental memorandum. Thus, defendant was not given an opportunity to explain why it should not have to pay plaintiff's attorney fees. Nevertheless, the court's denial is without prejudice. Plaintiff may raise the issue on a separate motion once the extent and nature of defendant's discovery conduct is clear.

For the foregoing reasons, the court grants plaintiff's Motion to Compel (docket no. 55) in substantial part. By March 18, 2022, defendant must investigate the accuracy of the positions it has taken in discovery responses to date, conduct a more thorough search for responsive documents, provide plaintiff a declaration attesting to the search efforts it has taken, and produce supplemental discovery responses and responsive documents, as described above.

For all disputed discovery requests, the court overrules as waived any objections initially raised in defendant's written responses but not explained or supported in the JS. See DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (“The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” (citations omitted)).