Opinion

Nuvasive, Inc. v. Alphatec Holdings, Inc.

Court
District Court, S.D. California
Filed
Sep 12, 2019
Cited by
0 cases
Authority
More cited than 19.0%

The opinion

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 NUVASIVE, INC., Case No.: 18-cv-0347-CAB-MDD

12 Plaintiff,

ORDER ON JOINT MOTON FOR

13 v. DETERMINATION OF

DISCOVERY DISPUTE

14 ALPHATEC HOLDINGS, INC., and

REGARDING REQUESTS FOR

ALPHATEC SPINE, INC.,

15 PRODUCTION 81 AND 93

Defendants.

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[ECF NO. 193]

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18 Before the Court is the Joint Motion of the parties for determination of

19 a discovery dispute filed on October 19, 2018. (ECF No. 117). This is a

20 patent case and the joint motion presents Plaintiff’s motion to compel further

21 responses to two requests for production of documents from Defendants.

22 LEGAL STANDARD

23 The Federal Rules of Civil Procedure authorize parties to obtain

24 discovery of “any nonprivileged matter that is relevant to any party’s claim or

25 defense and proportional to the needs of the case....” Fed. R. Civ. P. 26(b)(1).

26 “Information within the scope of discovery need not be admissible in evidence

1 discovery where the discovery sought is “unreasonably cumulative or

2 duplicative, or can be obtained from some other source that is more

3 convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C).

4 A party may request the production of any document within the scope of

5 Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the response

6 must either state that inspection and related activities will be permitted as

7 requested or state an objection to the request, including the reasons.” Rule

8 34(b)(2)(B). If the responding party chooses to produce responsive

9 information, rather than allow for inspection, the production must be

10 completed no later than the time specified in the request or another

11 reasonable time specified in the response. Id. An objection must state

12 whether any responsive materials are being withheld on the basis of that

13 objection. Rule 34(b)(2)(C). An objection to part of a request must specify the

14 part and permit inspection or production of the rest. Id. The responding

15 party is responsible for all items in “the responding party’s possession,

16 custody, or control.” Rule 34(a)(1). Actual possession, custody or control is

17 not required. Rather, “[a] party may be ordered to produce a document in the

18 possession of a non-party entity if that party has a legal right to obtain the

19 document or has control over the entity who is in possession of the

20 document.” Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995).

21 DISCUSSION

22 1. RFP No. 81

23 Plaintiff requests the production of “[d]ocuments sufficient to show, on a

24 monthly or quarterly basis from January 1, 2014 to present [Defendants’] size

25 and financial condition, including but not limited to assets, liabilities, and the

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1 differences in their totals.” (ECF No. 193 at 7).1 In response, Defendants

2 produced several years of “comprehensive public financial statements

3 (namely Form 10-Ks, 10-Qs and 8-Ks), which are, of course, detailed, vetted

4 and submitted to the Securities and Exchange Commission.” (Id. at 11).

5 Defendants explain that each Form 10-K includes a comprehensive balance

6 sheet showing total assets, broken down by type; total liabilities broken down

7 by type; a breakdown of stockholders’ equity; revenue; gross profit; operating

8 expenses, broken down by category; operating loss; and cash flow. (Id.).

9 Defendants also assert that they have produced and are continuing to

10 produce, in response to an Interrogatory served by Plaintiff, detailed sales

11 data, including sales data and information regarding the accused products.

12 (Id. at 12). Defendants assert that they have complied with this request for

13 production.

14 Plaintiff asserts that the information supplied is insufficient. Plaintiff

15 wants Defendants to produce internal company documents including

16 “internal financial summaries, financial presentations such as board

17 presentations, financial strategy documents, etc.” (ECF No. 8). Plaintiff

18 asserts that these internal documents together with the public documents

19 paint the requested picture. (Id.).

20 The Court finds that Defendants production is a legally adequate

21 response to Plaintiff’s request for “documents sufficient to show . . .

22 Alphatec’s size and financial condition including . . . assets, liabilities, and

23 the differences in their totals.” The crux of the issue here is the use of the

24 phrase “sufficient to show.” By using the ambiguous phrase “sufficient to

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1 The Court will refer to page numbers supplied by CM/ECF rather than original

1 show,” a disagreement over the extent of production was inevitable. The

2 Plaintiff does not have the right to insist on its interpretation of “sufficiency”

3 when it had the ability to request specific categories of financial documents.

4 No further response is required of Defendants.

5 2. RFP No. 93

6 Plaintiff requests Defendants to produce “[d]ocuments sufficient to show

7 Patrick Miles’ expense reports concerning the Accused Products, hospital-

8 customers for the Accused Products, and/or surgeon-customers for the

9 Accused Products.” (ECF No. 193 at 14). In addition to objections for

10 relevance, Defendants have responded that it has identified no expense

11 reports for Patrick Miles concerning the Accused Alphatec Components.”

12 (ECF No. 16). Presumably, then, the fight here is over expense reports for

13 Mr. Miles regarding hospital-customers and surgeon-customers that use the

14 Accused Products, a much broader scope than expense reports for Mr. Miles

15 that are related directly to the Accused Products. Plaintiff asserts that these

16 documents are relevant to issues of assignor-estoppel, induced or willful

17 infringement, lost profits and enhanced damages. Defendants assert that

18 there is no relevance of these expense reports to any claim or defense in the

19 case.

20 Defendants’ response fails to comply with Rule 34(b)(2)(C), Fed. R. Civ.

21 P., which provides that “[a]n objection must state whether any responsive

22 materials are being withheld on the basis of that objection.” Defendants

23 have not stated that there are documents they are withholding based upon

24 their objections. That failure must be remedied. Nonetheless, the Court is

25 not convinced that these expense reports are relevant; the arguments made

26 by Plaintiff suggest little more than a fishing expedition.

1 ||amended response to RFP No. 93 stating whether any responsive materials

2 ||are being withheld pursuant to their objection.

3 ||As stated by the Advisory Committee:

4 [T]he producing party does not need to provide a detailed

description or log of all documents withheld, but does need to alert

other parties to the fact that documents have been withheld and

6 thereby facilitate an informed discussion of the objection.

7 Ped. R. Civ. P. 34, Advisory Committee Notes (2015 Amendment). No

8 || additional response is required.

9 CONCLUSION

10 As presented in this Joint Motion, Plaintiff's motion to compel further

11 responses to RFP Nos. 81 and 93 is DENIED. Defendants, however, must

12 || amend their response to RFP No. 98, within 14 days, to state whether

13 responsive documents have been withheld pursuant to their objection.

14 IT IS SO ORDERED:

15 |\Dated: September 12, 2019

member 1209 Mitel. Sow Le

17 Hon. Mitchell D. Dembin

United States Magistrate Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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