Patagonia, Inc. et al v. Anheuser Busch, LLC Case No. CV 19-02702 VAP (JEMx) United States District Court, C.D. California Filed February 19, 2020 Counsel Alexandra Nicole Martinez, Ryan T. Bricker, Beatrice O'Neil Strnad, Gia Louise Cincone, Hannah T. Yang, Sophy Tabandeh Manes, Gregory S. Gilchrist, Kilpatrick Townsend and Stockton LLP, San Francisco, CA, Nichole D. Chollet, Pro Hac Vice, Kilpatrick Townsend and Stockton LLP, Atlanta, GA, for Patagonia, Inc. et al. Adam S. Paris, Michael H. Steinberg, Sullivan and Cromwell LLP, Los Angeles, CA, Amanda A. Main, Angela L. Dunning, Cooley LLP, Palo Alto, CA, Dina Roumiantseva, Cooley LLP, San Francisco, CA, Marc De Leeuw, Pro Hac Vice, Sullivan and Cromwell LLP, New York, NY, Marcus D. Peterson, Bobby A. Ghajar, Cooley LLP, Santa Monica, CA, for Anheuser Busch, LLC. McDermott, John E., United States Magistrate Judge Proceedings: (IN CHAMBERS) ORDER RE PLAINTIFFS' MOTION TO COMPEL DISCOVERY RESPONSES (Docket No. 58) *1 Before the Court is Plaintiffs Patagonia, Inc. and Patagonia Provisions, Inc. (“Patagonia”)'s Motion To Compel Discovery Responses (“Motion”) from Defendant Anheuser Busch, LLC (“AB”), pursuant to Fed. R. Civ. P. Rules 34 and 37(a). (Dkt. 58, 58-1.) At issue are 100 document requests, including seven priority requests (Nos. 2, 4, 9, 10, 13, 14 and 20) needed for early summary judgment motions. AB has said it will produce the priority requested documents by the third week in February, subject to a right to supplement. The primary issue in dispute is a date by which AB must complete production of all documents responsive to all requests. Plaintiffs' Proposed Order seeks production by March 10, 2019, two weeks after the hearing date of this Motion. The Court GRANTS the Motion in part and DENIES it in part, as explained below. Patagonia's discovery requests were served on July 5, 2019. AB did not produce any documents while its Motion to Dismiss was pending, which was denied on September 3, 2019. (Dkt. 24.) Nor did it produce any documents until after the Protective Order was entered on December 6, 2019. (Dkt. 54.) AB began producing documents in December 2019 and agreed to produce the priority requests by the third week of February. AB not only urges the Court to reject Patagonia's request that it produce all remaining documents within two weeks but also asks the Court not to set a final deadline to produce all documents responsive to all 100 document requests “given the ongoing nature of AB's gathering of documents and months left in discovery.” (Joint Stipulation (“JS”), 16:19-22.) To begin, Rule 34, amended in 2015, requires a written response to document requests within 30 days, stating that the documents will be produced or stating objections to the requests. Rule 34(b)(2)(A) and (B). Production must then be completed no later than the time for inspection specified in the request or “another reasonable time specified in the response.” Rule 34(b)(2)(B) (emphasis added). The Advisory Note to the 2015 Amendment adds, “When it is necessary to make a production in stages the response should specify the beginning and end dates of the production.” Patagonia did not state a date in its requests. It merely called for production at “an agreed time.” (JS 7.) AB also did not state a reasonable time for production in its responses. It stated: AB will produce documents on a rolling basis. AB will meet and confer with Plaintiffs regarding a mutual schedule for production, and AB reserves the right to supplement its production beyond the deadline for completion. (JS 7.) AB does not appear to be in violation of Rule 34, at least not yet, as to the priority requests. It signaled it would begin rolling productions in December (which it did) and on January 12, 2020 indicated it would produce documents responsive to the seven priority requests by the third week of February, 2020. (Dkt. 58-5 at 2, Main email, Ex. F to Peterson Decl.) AB argues that any dispute over the priority requested documents is or will be moot by or before the February 25, 2020 hearing date of this Motion. The Court expects AB to complete its production of priority requested documents in its custody, control or possession by February 21, 2020, which is the end of the third week of February. AB also should serve at the same time a verification by a principal (not counsel) under oath and subject to penalty of perjury that all relevant non-privileged documents in its custody, control or possession, responsive to Request Nos. 2, 4, 9, 10, 13, 14 and 20 have been produced. AB may supplement with newly discovered documents after February 21, 2020. *2 Patagonia's demand for a final production date for all documents responsive to all requests is another matter entirely. AB has not given a date or “reasonable time” for production and requests that one not be ordered. The Court rejects AB's arguments. The Court does not accept AB's argument that it is unable to commit to a reasonable date for production. The Requests were served July 5, 2019, eight months ago. In late December, Patagonia demanded production within two weeks. (Dkt. 58-3 at 16, Main email, Ex. C to Bricker Decl.) That demand in December may not have been reasonable then but the same demand now is not so unreasonable as the parties approach the discovery cutoff date of July 3, 2020. AB is a large company with lots of resources and is obliged to deploy those resources to get the production done by a date certain. Nor can AB claim discovery is “premature” because the discovery cutoff is six months away, as it argued in December. (Id.) The discovery cutoff of July 3, 2020 is now only four months away. The District Court's Scheduling Order (Dkt. 55) provides that the discovery date is the last date to complete discovery, including expert discovery. It also is the last date for hearing any discovery motion. There likely will be discovery motion practice over AB's objections to Patagonia's requests and challenges to the reasonableness of AB's search for requested documents. Patagonia will have to comply with the joint stipulation process in Local Rule 37 to resolve such disputes. There is also urgency to complete document production to use the documents in motions and depositions and to inform experts. There is no justification for further delay. The Court finds that March 20, 2020, which is 30 days from now, is a reasonable date for AB's production of all documents responsive to all requests. The Court also rejects AB's assertion that production can be conditioned on Patagonia's compliance with its discovery obligations which is the subject of a separate motion. (Dkt. 57.) The Court will deal with each motion separately on the merits. Accordingly, AB is ORDERED to produce all documents responsive to all requests by March 20, 2020, which is 30 days from now. AB shall provide a verification in the same form as described above. AB may supplement its production with newly discovered documents subsequent to the production. The Court will hold in abeyance any ruling on Patagonia's fees motion until the Court is advised further of AB's compliance with the February 21, 2020 and March 20, 2020 deadlines set forth above. The Court declines to address Patagonia's request to depose witnesses a second time regarding any document not produced five business days before the deposition. The parties have not met and conferred on this issue nor has Patagonia presented legal authority regarding the applicability of Rules 30(a)(2) and 26(b)(1) and (2). The hearing date for this Motion of February 25, 2020 is hereby vacated.