*1 On February 9, 2023, defendants World Tech Toys, Inc. (“WTT”) and World Trading 23, Inc. (“WT23”) (collectively, “Defendants”) filed a Motion to Compel the depositions of (1) Gui Xi Liu, president and chairman of plaintiff Shijiazhuang Hongray Group (“Plaintiff”); (2) Kang Zhang, an employee of Hongze Plastic Technology, Co., Ltd. (“HPT”), a subsidiary of Plaintiff; and (3) Jing Zhang, an employee of HPT (the “Employee Motion to Compel”), and a Motion to Compel the depositions of “persons most knowledgeable” from the following subsidiaries of Plaintiff: (1) HPT; (2) Better Care Plastic Technology CP, Limited (“Better Care”); and (3) Grand Work Plastic Products Co. Ltd. (“Grand Work”) (the “PMK Motion to Compel”) (collectively, “Motions to Compel”). ECF Docket Nos. (“Dkts.”) 58, 60. The parties filed Joint Stipulations pursuant to Local Rule 37-2 in connection with both Motions to Compel. Dkts. 59, 61. For the reasons set forth below, Defendants' Employee Motion to Compel is CONDITIONALLY GRANTED as to Mr. Liu and DENIED as to Kang Zhang and Jing Zhang and Defendants' PMK Motion to Compel is DENIED.

On June 9, 2021, Plaintiff filed a Complaint asserting claims for unfair competition in violation of the Lanham Act, 15 U.S.C. §§ 1051, et seq., and related state laws. Dkt. 1. On July 1, 2021, Plaintiff filed a First Amended Complaint (“FAC”) setting forth the same unfair competition claims. Dkt. 13. Plaintiff and its subsidiaries manufacture, import, and sell boxes of authentic nitrile gloves (“Nitrile Gloves”) that are frequently used in circumstances where personal protective equipment (“PPE”) is required. Id. Plaintiff alleges Defendants imported and sold counterfeit gloves in the United States marketed as being manufactured by Plaintiff and authorized under Plaintiff's FDA-registered 510(k) number, which registration is required for sale of medical-grade gloves in the United States. Id.

On August 4, 2021, Defendants filed an Answer to the FAC. Dkt. 15.

On October 4, 2021, the Court issued a Scheduling Order setting a fact discovery cut-off on September 12, 2022 and a Jury Trial for March 13, 2023. Dkt. 24. In addition, the Scheduling Order provided the discovery cut-off is “the last day for hearing any discovery motion.” Id. at 4.

On April 27, 2022, the Court issued a “Reassignment Order” assigning the case to the Honorable Fred W. Slaughter. Dkt. 31. The Reassignment Order provided “[a]ll discovery cutoff dates and other deadlines associated with this case, such as disclosure and expert deadlines, shall remain in effect.” Id. at 1.

On May 12, 2022, the parties filed a Joint Case Management Statement in which Defendants state that based upon “the anticipated difficulties in completing party-affiliated and third-party discovery and depositions in China as a result of Chinese law and COVID issues, Defendants believe that a 6-month continuance of all dates is necessary and proper.” Dkt. 34 at 11.

On May 31, 2022, the Court issued a Scheduling Order resetting the fact discovery cut-off for February 2, 2023, a “Last Date to Hear Motions” on March 9, 2023, and a Jury Trial of June 13, 2023. Dkt. 36.

*2 On November 9, 2022, Defendants' counsel emailed Plaintiff's counsel regarding scheduling depositions and requesting to take the depositions of several individuals, including Mr. Liu, Kang Zhang, and Jing Zhang. Dkt. 59-7, Declaration of Tony J. Cheng in support of Employee Motion to Compel (“Cheng Decl.”), ¶ 4, Ex. 5.

On November 23, 2022, Defendants served Plaintiff with Notices of Deposition pursuant to Federal Rule of Civil Procedure 30(b)(6) (“Rule 30(b)(6)”) of Plaintiff and HPT. Dkt. 59-18 at 1-5, Declaration of Jean Paul Ciardullo in opposition to Employee Motion to Compel (“Ciardullo Decl.”), ¶ 2, Ex. 1. Defendants set the deposition of HPT for December 28, 2022. Dkt. 61-7, Declaration of Tony J. Cheng in support of PMK Motion to Compel (“Cheng PMK Decl.”), ¶ 6, Ex. 7.

On November 29, 2022, Plaintiff's counsel emailed Defendants' counsel objections to the Notice of Deposition of HPT as well as to the potential depositions of Mr. Liu, Kang Zhang, and Jing Zhang. Cheng Decl., ¶ 6, Ex. 7.

On December 9 and 16, 2022, counsel met and conferred by phone and discussed Defendants' requested depositions, but the parties were unable to reach any agreements. Ciardullo Decl., ¶¶ 4, 5; Cheng PMK Decl., ¶ 9.

On January 2, 2023, Defendants served Plaintiff with Notices of Deposition pursuant to Federal Rule of Civil Procedure 30(b)(1) (“Rule 30(b)(1)”) of Mr. Liu for February 1, 2023, Kang Zhang for January 25, 2023, and Jing Zhang for January 26, 2023. Ciardullo Decl., ¶ 6, Ex. 3.

On January 19, 2023, Defendants served Plaintiff with Notices of Deposition pursuant to Rule 30(b)(6) of non-parties Better Care and Grand Work, which are China-based subsidiaries of Plaintiff. Ciardullo Decl., ¶ 12. Defendants set the depositions for February 2, 2023. Cheng PMK Decl., ¶ 10, Exs. 10, 11.

On January 21, 2023, Plaintiff filed an ex parte application for protective order seeking to quash the depositions of Mr. Liu, Kang Zhang, Jing Zhang, HPT, Better Care, and Grand Work. Dkt. 49.

On January 21, 2023, Plaintiff's counsel and Defendants' counsel reached an agreement whereby Plaintiff withdrew its ex parte application for protective order and the parties would bring the issues to the Court via noticed motion. Cheng Decl., ¶ 13.

On February 9, 2023, Defendants filed the instant Motions to Compel and Joint Stipulations pursuant to Local Civil Rule 37-2. Dkts. 58, 59, 60, 61. On February 16, 2023, Defendants filed supplemental briefs. Dkts. 72, 73. The matters thus stand submitted.

Federal Rule of Civil Procedure 26(b) provides that parties may obtain discovery regarding

FED. R. CIV. P. 26(b)(1); see also Centeno v. City of Fresno, No. 1:16-CV-653 DAD (SAB), 2016 WL 7491634, at *4 (E.D. Cal. Dec. 29, 2016) (citing In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)) (“Relevancy alone is no longer sufficient to obtain discovery, the discovery requested must also be proportional to the needs of the case.”). Relevant information “need not be admissible in evidence to be discoverable.” FED. R. CIV. P. 26(b)(1). A court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” FED. R. CIV. P. 26(b)(2)(C).

*3 Rule 30 governs depositions by oral examination. See FED. R. CIV. P. 30. Rule 30(a)(1) provides that, subject to certain limitations, “[a] party may, by oral questions, depose any person, including a party, without leave of court ....” FED. R. CIV. P. 30(a)(1). Rule 30(b)(6) provides:

FED. R. CIV. P. 30(b)(6). The court “may, on motion, order sanctions if: [ ] a party or a party's officer, director, or managing agent – or a person designated under Rule 30(b)(6) ... – fails, after being served with proper notice, to appear for that person's deposition[.]” FED. R. CIV. P. 37(d)(1)(A)(i).

A. TIMELINESS

As an initial matter, it appears the Motions to Compel may be untimely. The Court notes the initial Scheduling Order issued on October 4, 2021 provided the discovery cut-off is “the last day for hearing any discovery motion.” Dkt. 24 at 4. Defendants argue the Court's May 31, 2022 Scheduling Order permits hearings on any motions up to March 9, 2023. Dkt. 72 at 2; dkt. 73 at 2. It is not clear to this Court that Judge Slaughter intended to supersede the entirety of the October 4, 2021 Scheduling Order when he issued a revised Scheduling Order on May 31, 2022 setting March 9, 2023 as the “Last Date to Hear Motions.” However, the Court agrees there is some unintended ambiguity created by the multiple scheduling orders. In addition, Plaintiff appears to have agreed to withdraw its January 21, 2023 ex parte application for protective order with the understanding that the dispute regarding depositions would be brought to the Court by noticed motion. See Cheng Decl., ¶ 13. Therefore, the Court will address the Motions to Compel on the merits.

B. DEFENDANTS' EMPLOYEE MOTION TO COMPEL IS CONDITIONALLY GRANTED AS TO GUI XI LIU

Defendants seek the deposition of Plaintiff's chairman, Mr. Liu, because he has “unique personal knowledge of information including whether he executed and/or authorized the execution of certain documents, consent, and/or authorizations as well as facts/contentions he has previously made and/or about him in declarations filed in this action.” Dkt. 59 at 19. Plaintiff objects to Mr. Liu's deposition on the grounds (a) Mr. Liu is an “apex deponent” and “has no unique first-hand knowledge of the fake documents that contain his fake signature” because “all of Defendants' purported evidence in support of seeking Mr. Liu's deposition is fabricated”; (b) “international travel in the midst of another COVID outbreak [and] on such short notice [is] effectively impossible”; and (c) Mr. Liu's deposition would be cumulative of the deposition of Plaintiff's corporate witness. Id. at 23-26.

*4 First, Mr. Liu's testimony regarding documents he allegedly signed purporting to authorize the sale of the Nitrile Gloves at issue in this action is clearly relevant to the claims and defenses in this action. In determining whether to allow the deposition of a high-level executive, also known as an apex witness, “courts consider (1) whether the deponent has unique first-hand, nonrepetitive knowledge of the facts at issue in the case and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods.” Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012). Here, despite evidence submitted by Plaintiff purporting to prove certain documents allegedly bearing Mr. Liu's signature are forged, Mr. Liu has unique, first-hand knowledge of his signature and the information set forth in the declaration he submitted in opposition to Defendants' Motion for Summary Judgment. See dkt. 63-6. In addition, while Plaintiff claims its experts and corporate witness would testify that the documents allegedly signed by Mr. Liu are fabricated, Defendants are nonetheless entitled to depose Mr. Liu regarding the relevant information he possesses. Therefore, Mr. Liu's testimony is not repetitive or cumulative of the testimony from Plaintiff's corporate witness.

Second, because the parties agree it would be illegal under Chinese law for Mr. Liu to sit for deposition in China, even by remote means, Plaintiff argues Mr. Liu's deposition is “impossible” on only one-month notice due to Mr. Liu's health. Mr. Liu states he has “been in poor health for quite some time, and [his] doctors have advised [him] not to receive the COVID vaccine due to his health conditions.” Dkt. 59-21, Declaration of GuiXi Liu (“Liu Decl.”), ¶ 5.[1] Mr. Liu states he is at increased risk of serious infection from travel in light of “the recent COVID outbreak and winter season.” Id. In addition, Mr. Liu states travelling for a February 1, 2023 deposition is not possible because of his “important professional commitments,” including “attending [Plaintiff's] internal meetings, including shareholder meetings, high-level directors' meetings, new product research and development meetings, new project cooperation meetings, sales meetings, new year strategic development meetings,” as well as “go[ing] to each manufacturing base to perform on-site inspections” and “attend[ing] meetings with varying levels of government.” Id., ¶ 6. While the Court agrees one month is not sufficient notice to accommodate the logistical issues involved in coordinating Mr. Liu's deposition in the United States, Plaintiff has not satisfied its burden “of making a specific and documented factual showing that the deposition would be dangerous to [his] health.” Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 127 (D. Md. 2009) (emphasis in original) (denying protective order where moving party failed to provide a declaration from a medical professional supporting his assertion that a deposition would threaten the moving party's health); Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (holding a motion for protective order “must be supported by ‘good cause’ and a strong showing is required before a party will be denied entirely the right to take a deposition”). In fact, Plaintiff merely presents Mr. Liu's own declaration regarding his alleged health issues.

Nevertheless, this Court is without authority to order discovery after the discovery cut-off set by the District Judge or to continue the discovery cut-off. See United States v. Celgene Corp., No. CV 10-3165 GHK (SS), 2015 WL 9661172, at *1 (C.D. Cal. Oct. 16, 2015) (holding a magistrate judge “does not have the authority to order discovery after the deadline set by the District Judge”). Accordingly, Defendants' Motion to Compel the deposition of Mr. Liu is CONDITIONALLY GRANTED subject to the District Judge granting an extension of the discovery cut-off. However, the Court explicitly expresses no opinion whether Plaintiff is entitled to an extension and notes Defendants' service of the Notice of Deposition only one month before the discovery cut-off and failure to make any effort to schedule Mr. Liu's deposition until November 2022 is particularly egregious in light of their awareness and explicit acknowledgement of the legal and logistical difficulties of deposing witnesses in China. See dkt. 34 at 11.

C. DEFENDANTS' EMPLOYEE MOTION TO COMPEL IS DENIED AS TO KANG ZHANG AND JING ZHANG AND DEFENDANTS' PMK MOTION TO COMPEL IS DENIED

*5 Defendants are seeking to depose HPT, Better Care, and Grand Work pursuant to Rule 30(b)(6) as well as two employees of HPT, Kang Zhang and Jing Zhang. Plaintiff objects to the depositions on the ground merely noticing the depositions pursuant to Rules 30(b)(1) and 30(b)(6) is insufficient because HPT, Better Care, Grand Work, and their employees are not parties to the litigation.

“The Federal Rules of Civil Procedure distinguish between parties and non-parties in establishing available discovery devices.” Jules Jordan Video, Inc. v. 144942 Canada, Inc., 617 F.3d 1146, 1158 (9th Cir. 2010). Rule 30(b)(1) provides that a party may request the deposition of another party to the litigation by serving a notice upon that party. FED. R. CIV. P. 30(b)(1). Federal Rule of Civil Procedure 45 (“Rule 45”), however, provides the exclusive method of discovery on non-parties. Thompson v. Gonzales, No. 1:15-CV-301-LJO-EPG, 2016 WL 5404436, at *4 (E.D. Cal. Sept. 27, 2016). “[B]ecause Rule 45 is the only discovery-related Rule that pertains to non-parties, numerous courts have held explicitly that a Rule 45 subpoena is required to obtain discovery from a non-party.” Id. at *4; see also Jules Jordan, 617 F.3d at 1158 (noting a non-party can only be deposed by subpoena). A non-party is subject to – and will be required to comply with – a valid, properly served Rule 45 subpoena. Thompson, 2016 WL 5404436, at *8 n.11. If the person sought for deposition is not within the subpoena power of a United States court, then procedures according to international treaty must be followed. In re Ski Train Fire of Nov. 11, 2000 Kaprun Austria, No. MDL 1428(SAS)THK, 2006 WL 1328259, at *9 (S.D.N.Y. May 16, 2006).

It is undisputed that HPT, Better Care, and Grand Work are China-based, non-party subsidiaries of Plaintiff, and Kang Zhang and Jing Zhang are employees of HPT. See Ciardullo Decl., ¶ 12; dkt. 61-23, Declaration of Jie (Kathy) Liu, ¶¶ 6, 7.[2] Defendants, nevertheless, argue service of a notice of deposition without a subpoena or compliance with international treaties is sufficient because (a) Kang Zhang and Jing Zhang should be considered “managing agent[s],” dkt. 59 at 28, 32-34, and (b) Plaintiff “has control over the information, documents, and employees” of HPT, Better Care, and Grand Work, dkt. 61 at 18. First, even if the Court considered Kang Zhang and Jing Zhang to be “managing agents,” they would still be managing agents of the non-party subsidiary HPT. Second, unlike the language of Federal Rule of Civil Procedure 34 requiring production of all documents in the party's “possession, custody, or control,” Rule 30 does not require a party to litigation to produce persons for deposition who are merely alleged to be in the party's control. See In re Ski Train Fire of Nov. 11, 2000 Kaprun Austria, 2006 WL 1328259, at *9. Therefore, Defendants' argument regarding control over the subsidiaries is not relevant.

Hence, Defendants' Motion to Compel the depositions of HPT, Better Care, Grand Work, Kang Zhang, and Jing Zhang is DENIED.

*6 For the reasons set forth above, Defendants' Employee Motion to Compel is CONDITIONALLY GRANTED as to Mr. Liu and DENIED as to Kang Zhang and Jing Zhang and Defendants' PMK Motion to Compel is DENIED.