CAO Lighting, Inc. v. Feit Electric Company, Inc Case No. CV 20-4926-AB (SPx) United States District Court, C.D. California Filed June 02, 2021 Counsel Seth A. Gold, Roya Rahmanpour, Barnes and Thornburg LLP, Los Angeles, CA, E. Sahara L. Williams, Pro Hac Vice, Jeff M. Barron, Pro Hac Vice, Paul B. Hunt, Pro Hac Vice, Todd G. Vare, Pro Hac Vice, Barnes and Thornburg LLP, Indianapolis, IN, for CAO Lighting, Inc. Mayela C. Montenegro-Urch, Naoki S. Kaneko, Shook Hardy and Bacon LLP, Irvine, CA, Mark D. Schafer, Pro Hac Vice, Maxwell C. McGraw, Pro Hac Vice, Ryan D. Dykal, Pro Hac Vice, Shook Hardy and Bacon LLP, Kansas City, MO, Paul B. La Scala, United States Attorney's Office, Los Angeles, CA, for Feit Electric Company, Inc. Pym, Sheri, United States Magistrate Judge Proceedings: (In Chambers) Order Granting in Part and Denying in Part Plaintiff's Motion to Compel [68] I. INTRODUCTION *1 On April 27, 2021, plaintiff CAO Lighting, Inc. filed a joint stipulation (“JS”) regarding its motion to compel defendant Feit Electric Company, Inc. to produce core technical documents and supplement its responses to several discovery requests. Plaintiff's arguments are supported by the declaration of its counsel Jeff M. Barron (“Barron Decl.”) and exhibits A through S. Defendant's arguments are supported by the declarations of its Chief Executive Officer Aaron Feit (“Feit Decl.”) and counsel Ryan Dykal (“Dykal Decl.”), as well as exhibits T through X. Plaintiff filed a supplemental memorandum in support of its motion on May 4, 2021 (“P. Supp. Mem.). The court found a hearing on the motion would not be of assistance and so vacated the hearing scheduled for May 18, 2021. The court now grants in part and denies in part plaintiff's motion to compel, and directs the parties to meet and confer regarding the remaining issues raised in the parties' briefs. II. BACKGROUND Plaintiff makes, markets, and sells LED lighting products under the brand names LuxemBright and Dynasty. First Am. Compl. (“FAC”) ¶ 11. According to plaintiff, its products provide energy-saving, solid state lighting solutions to signage and commercial applications. Id. Plaintiff is a wholly owned subsidiary of CAO Group, Inc. Id. ¶ 4. On June 3, 2020, plaintiff filed a Complaint alleging willful infringement of one or more claims of its U.S. patent no. 6,465,961 (“the Patent”). Compl. ¶¶ 1, 66; FAC ¶¶ 1, 130. The Patent, titled “Semiconductor Light Source using a Heat Sink with a Plurality of Panels,” was issued by the U.S. Patent and Trademark Office (“PTO”) on October 15, 2002. FAC ¶ 15. CAO Group, Inc., the Patent's prior owner, sued defendant and others for infringement on May 10, 2011 in the U.S. District Court for the District of Utah. Id. ¶ 1. The Utah action was stayed after two of the defendants filed petitions for inter partes reexamination and ex parte reexamination directed to the Patent.[1] Id. An ex parte reexamination certification was issued on or about September 2, 2014, cancelling the original 1 through 20 claims and deeming new claims 21 through 103 patentable. Id. ¶¶ 1, 22. The inter partes reexamination proceedings continued until May 2017. Id. ¶ 1. The Patent went through multiple assignments until it was assigned to the current plaintiff in October 2016. Id. ¶ 2. On January 14, 2020, CAO Group, Inc. filed a motion to reopen the Utah action. Id. ¶ 3. On April 23, 2020, the Utah court dismissed the action without prejudice for lack of subject matter jurisdiction. Id. *2 On August 10, 2020, plaintiff filed its FAC in this case, which defendant moved to dismiss on September 3, 2020. Defendant argued plaintiff's claims were barred by equitable estoppel, plaintiff failed to comply with the patent marketing statute, plaintiff failed to plead a viable claim for willful infringement, and the allegations based on information and belief were improper. See Mtn. to Dismiss at 1-12. The court denied defendant's motion to dismiss on October 22, 2020. In its order denying defendant's motion to dismiss, the court ordered the parties to meet and confer regarding the possible selection of patent local rules for this case. The court recommended the parties review the patent local rules from the Northern District of California, the Eastern District of Texas, and those issued by Judge Kronstadt in this district.[2] On November 5, 2020, defendant answered the FAC and asserted a counterclaim for unenforceability of the Patent due to inequitable conduct. Plaintiff filed an answer to the counterclaim on November 25, 2020. The court set the following deadlines in this case: (1) December 1, 2020: initial identification of accused products, damages model, and production of file histories; (2) February 1, 2021: core technical document production; and (3) April 1, 2021: initial infringement contentions. On December 1, 2020, plaintiff served its Identification of Accused Products, Asserted Patents, and Damages Model, which defined the accused products as “any lighting source product made, used, sold, or offered for sale, or imported into the United States, by Feit Electric that incorporates a Light Emitting Diode (LED), including LED bulbs, lamps, tubes, or fixtures.” Plaintiff then listed several of defendant's online catalogs that allegedly included the accused products. Plaintiff also sought to include as accused products “any LED bulbs, lamps, tubes, or modules having the same or substantially the same structure, shape, or configuration.” After defendant objected to the initial identification of accused products, on January 11, 2021, plaintiff produced a spreadsheet identifying approximately 638 products that allegedly infringe the asserted Patent claims. See Barron Decl., Ex. E (plaintiff's January 11, 2021 meet-and confer letter); Dykal Decl., Ex. U (January 11, 2021 spreadsheet). Defendant claims it produced core technical documents by the February 1, 2021 deadline. See Dykal Decl., Ex. V. Plaintiff served its initial infringement contentions and charts on April 1, 2021. See Barron Decl., Ex. N. At issue here are plaintiff's first set of RFPs and Interrogatories, which he served on November 2 and 3, 2020. Barron Decl., Exs. A & B. Defendant served its initial responses on December 23, 2020. Id., Exs. C & D. Defendant supplemented its responses on January 29, 2021. Id., Exs. F & G. III. DISCUSSION Plaintiff now moves to compel production of complete core technical documents and further responses to RFP nos. 1, 8-9, 12-15, 18-21, and 38, and Interrogatories nos. 1-2, and 4. These requests generally seek technical information and documents, product catalogs, advertising materials, a list of products that use LEDs as a light source, sales information, and a list of the LED manufacturers and suppliers used by defendant. With respect to all of the information and records sought, the parties' overarching dispute is the sufficiency of plaintiff's representative infringement contentions and charts. A. Discovery Standard *3 Federal Rule of Civil Procedure 26 provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1); Fed. R. Civ. P. 26(b)(1) advisory committee's note to 2000 amendment (the court has “the authority to confine discovery to the claims and defenses asserted in the pleadings”); U.S. v. Aurora Las Encinas, LLC, 2012 WL 12897081, at *5 (C.D. Cal. Sept. 6, 2012) (“The pleadings define the scope of the present discovery ....” (internal quotation marks and alteration omitted)). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “Relevancy, for the purposes of discovery, is defined broadly, although it is not without ultimate and necessary boundaries.” Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006) (citation and internal quotation marks omitted). In patent cases, infringement contentions shape the conduct of discovery and trial preparation. See O2 Micro Int'l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1366 (Fed. Cir. 2006). They “act as forms of pleading that disclose the parties' theories of their case and thereby shape discovery and the issues to be determined at trial.” Apple, Inc. v. Samsung Elecs. Co., 2013 WL 3246094, at *3 (N.D. Cal. June 26, 2013); see also Smart Wearable Techs. Inc. v. Fitbit Inc., 2018 WL 659013, at *1 (N.D. Cal. Feb. 1, 2018) (infringement contentions shape the scope of discovery and litigation). Indeed, similar to a complaint, parties may amend their contentions only with leave of court upon a timely showing of good cause. N.D. Cal. Patent L.R. 3-6. B. Sufficiency of Infringement Contentions and Charts The Northern District of California's Patent Local Rules require plaintiffs to identify their infringement theories early in litigation. See N.D. Cal. Patent L.R. 3-1. Plaintiffs must serve on all parties infringement contentions addressing “[s]eparately for each asserted claim, each accused apparatus, product, device, process, method, act, or other instrumentality (“Accused instrumentality”) ... of which the party is aware.” Id. at 3-1(b). “This identification shall be as specific as possible.” Id. The contentions must also include charts “identifying specifically where and how each limitation of each asserted claim is found within each Accused Instrumentality.” Id. at 3-1(c). A separate chart for each accused product is not necessary as long as each accused product allegedly infringes in the same way. Nichia Corp. v. Feit Elec. Co., 2020 WL 7264546, at *3 (C.D. Cal. Nov. 19, 2020) (citation omitted). But if a party intends to rely on representative products to meet its obligations under Patent Local Rule 3-1, “it must articulate how the accused products share the same, or substantially the same, infringing qualities with ... the representative product.” Tech. Props. Ltd. LLC v. Canon Inc., 2015 WL 5118687, at *3 (N.D. Cal. Aug. 31, 2015) (internal quotation marks and alteration omitted). The purpose of the infringement contentions is to “require parties to crystallize their theories of the case early in the litigation.” O2 Micro, 467 F.3d at 1364 (internal quotation marks omitted). This in turn “further[s] the goal of full, timely discovery and provide[s] all parties with adequate notice of and information with which to litigate their cases.” Genentech, Inc. v. Trs. of Univ. of Pa., 2012 WL 424985, at *1 (N.D. Cal. Feb. 9, 2012) (internal quotation marks omitted). Defendant's main argument in opposition to the motion to compel concerns the sufficiency of plaintiff's infringement contentions and charts. Plaintiff's initial infringement contentions and charts consist of at least eleven exhibits comparing or “charting” at least thirteen products to the asserted Patent claims.[3] See Barron Decl., Ex. N. Plaintiff claims these products are exemplary of larger categories of accused products. See id. For example, Exhibit 1 charts defendant's “Enhance 60 Watt Replacement LED Bulb (OM60DM/950CA/4),” a non-filament lamp, and “Enhance 100 Watt Replacement LED Bulb (BPA19100CL950CAFIL/2),” a filament lamp. See id. at Ex. 1 pp. 11-67. Plaintiff claims these two accused products are representative of how all of defendant's 240 LED A-line lamps (non-filament and filament) compare to the asserted Patent claims. See id. at Ex. 1 pp. 1-11. Specifically, plaintiff explains that defendant's LED A-line lamps all have the same or substantially the same structure corresponding to the elements of the Patent claims. Id. at Ex. 1 p. 10. According to plaintiff, the Exhibit 1 chart “demonstrates how each and every element of the identified claims of the Asserted Patents is literally found in the Accused Products.” Id. at Ex. 1 p. 11. *4 Defendant concedes that a party may rely on representative charted products but argues plaintiff seeks discovery on thousands of uncharted products without showing they contain the patented features. JS at 6, 24-25, 29. Instead of explaining with particularity how each charted product is representative of the uncharted products, defendant argues plaintiff merely provides conclusory statements parroting the elements of the asserted Patent claims. JS at 31. For these reasons, defendant contends plaintiff's discovery requests violate the Patent Local Rules and Rule 26's requirement to make a reasonable inquiry before seeking discovery. JS at 24. Defendant claims plaintiff's litigation strategy has already prejudiced defendant. Specifically, defendant claims plaintiff's amended identification of accused products contains dozens of products that do not include LEDs at all. JS at 26. By the time defendant realized this, it had already wasted resources compiling technical documents for all of those products. Id. Although plaintiff ultimately agreed to drop some of those products, it refused to commit to examine products for the presence of allegedly infringing features before accusing them of infringement in the future. Id. Defendant argues plaintiff seeks to impermissibly shift the burden of identifying accused products to defendant. JS at 26-27. Plaintiff counters its infringement contentions and charts adequately represent all accused products, charted and uncharted. See JS at 17-20. Plaintiff claims that even though the accused products come in different sizes and shapes, they all use similar LED chips and chip packages. JS at 1-2. Further, to the extent different bulbs have different characteristics (e.g., cool versus warm light, bulb versus tube shaped), plaintiff argues those characteristics are not relevant to the elements of the asserted Patent claims. See JS at 2. Plaintiff contends it would be satisfied with discovery regarding only the charted products if defendant stipulated that those products are representative of the other uncharted accused products and agreed to produce relevant financial information for all accused products. See JS at 3. The Magistrate Judge will not decide the sufficiency of plaintiff's infringement contentions on this motion to compel. If defendant wishes to challenge their sufficiency, defendant must present its arguments to the assigned District Judge in a motion to strike or to compel amendment of the infringement contentions. See Droplets, Inc. v. Yahoo! Inc., 2020 WL 4045211, at *3 (N.D. Cal. May 6, 2020) (motions to strike are generally treated as motions to compel amendment of the infringement contentions). There is no evidence of any such pending motion in the record of this case. Because infringement contentions shape the scope of discovery, it is improper to challenge them in a discovery motion before the Magistrate Judge. If the court agreed with defendant's arguments and limited discovery to a much narrower set of accused products, the operative infringement contentions currently in the record would become superfluous, which in turn would render the contentions requirement “virtually meaningless as a mechanism for shaping the conduct of discovery and trial preparation.” O2 Micro, 467 F.3d at 1366. This is not a case in which plaintiff's infringement contentions and charts are so plainly insufficient that the Magistrate Judge can say plaintiff is not even entitled to discovery consistent with its infringement contentions and charts. Defendant could have filed a motion to strike or compel amendment of the infringement contentions, and could then have asked the District Judge to stay discovery until the court ruled on the sufficiency of the contentions. See, e.g., Wilson Sporting Goods Co. v. Monsta Athletics, LLC, 2020 WL 5835320 (C.D. Cal. Feb. 19, 2020) (Birotte, J.) (considering a defendant's motion to strike plaintiff's infringement contentions); Int'l Bus. Machs. Corp. v. Zillow Grp., Inc., 2020 WL 3977779, at *4 (C.D. Cal. Apr. 13, 2020) (magistrate judge denying without prejudice plaintiff's discovery motion pending resolution of defendant's motion to strike infringement contentions and stay discovery in the absence of contentions that comply with the patent local rules). Indeed, defendant followed that very course in another case, Nichia, there filing a motion to strike all uncharted products from plaintiff's infringement contentions. 2020 WL 7264546, at *1. The District Judge in that case postponed all discovery matters pending resolution of defendant's motion. Id. The court went on to deny defendant's motion to strike. Id. at 4. But since defendant did not take that course here, the court rules on the instant motion to compel in light of the existing infringement contentions. *5 While the court will not here limit the scope of discovery to something narrower than the unchallenged infringement contentions, the court agrees with defendant that plaintiff cannot use representative charting to seek discovery into products not actually listed in the infringement contentions. See JS at 27-28. To be sure, there is some disagreement as to whether a plaintiff may seek discovery regarding products that are not listed in its infringement contentions. Compare Dr. Sys., Inc. v. Fujifilm Med. Sys. USA, Inc., 2008 WL 1734241, at *3 (S.D. Cal. Apr. 10, 2008) (allowing discovery into unlisted products after noting that “no bright line rule governs whether discovery can be obtained only for products expressly accused in infringement contentions”) with Samsung SDI Co. v. Matsushita Elec. Indus. Co., 2007 WL 4302701, at *1-2 (C.D. Cal. June 27, 2007) (affirming magistrate judge's order denying discovery into products not specifically listed by model number in infringement contentions). Some court have drawn the line for discovery based on whether the unlisted products are publicly available for the moving party to examine. For instance, in SPH America, LLC v. Research in Motion, Ltd., the court rejected plaintiff's efforts to force defendant to identify which of its products utilized one or more of four industry standards referenced by plaintiff in its infringement contentions. 2016 WL 6304510, at *1 (S.D. Cal. June 30, 2016). The court reasoned that the purpose behind the patent local rules would be frustrated if a party could allege only one infringing product and then use the discovery process to compel identification of all other reasonably similar infringing products. See id. at *3. The court also noted that in those cases where discovery into unlisted products was allowed, the courts “did so only because the required information was not publicly available and the moving party had no other way to access the information.” Id. (citations omitted); see also Oakley, Inc. v. Seaver Co., 2012 WL 579699, at *3 (S.D. Cal. Feb. 22, 2012) (discovery not necessary to determine whether publicly available products can be accused of infringement). Here, defendant argues its products are publicly available and thus discovery is not needed to identify potentially infringing products. See JS at 27-28. Plaintiff offers no argument or evidence in response. Accordingly, the court will limit discovery to only those accused products actually listed in plaintiff's infringement contentions. See SPH Am., 2016 WL 6304510, at *3 (denying discovery into unlisted products because plaintiffs did not produce any evidence “demonstrating the inability to identify defendant's other similar infringing devices, if any, from publically available information”). C. Core Technical Documents Plaintiff claims defendant has yet to complete its production of core technical documents for all of the accused products represented in the infringement contentions. JS at 3; P. Supp. Mem. at 1. Plaintiff alleges defendant refuses to do so based on its objection to the sufficiency of the contentions. See JS at 18. Plaintiff also argues defendant should have possession or at least control over all relevant technical documents by virtue of defendant's business relationships with the manufacturers and suppliers of its products. See JS at 20-21. Defendant claims it has already produced all non-custodial core technical documents located in its possession, custody, and control for each of the 638 products plaintiff identified in its January 11, 2021 spreadsheet. See JS at 22; Dykal Decl. ¶¶ 4, 10. All that remains according to defendant is for the parties to conduct custodial searches pursuant to their agreed-upon ESI Order. Defendant claims it does not maintain many of the categories of technical documents that plaintiff seeks (e.g., product designs and specifications, data sheets, and component specifications) because it does not design, develop, or manufacture the accused products or their components. JS at 22; Feit Decl. ¶¶ 3-6. Instead, defendant buys completed products from third-party suppliers and sells those products to retailers. See Feit Decl. ¶¶ 3-6. The court orders plaintiff to identify all products actually listed in the infringement contentions that were not originally identified in the January 11, 2021 spreadsheet. Defendant shall supplement its production of core technical documents for each of those new products. The court also expects defendant will supplement its production once the parties begin custodial ESI searches, but only as to those accused products actually listed in the infringement contentions. Other than that, plaintiff fails to show that defendant is withholding any additional core technical documents. First, as previously stated, plaintiff is not entitled to core technical documents for any products that are not actually identified by name or otherwise in its infringement contentions. Second, plaintiff fails to rebut defendant's claim that it does not have possession, custody, or control over certain technical documents. The party seeking production of documents bears the burden of proving the opposing party has control over those documents. See U.S. v. Int'l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989). “Control is defined as the legal right to obtain documents upon demand.” Id. (citation omitted). “The legal right to obtain documents on demand and the practical ability to obtain documents on demand are two distinct things.” Micron Tech., Inc. v. Tessera, Inc., 2006 WL 1646133, at *1 (N.D. Cal. June 14, 2006). *6 Here, the fact that defendant happened to maintain some core technical documents (i.e., data sheets from manufacturer Bridgelux) does not prove it has custody, control, or a legal right to obtain the rest. Plaintiff's speculative claim that defendant must have gotten technical documents from its manufacturers and suppliers is insufficient to satisfy its burden to show that defendant has control over all relevant technical documents. See In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999) (“[P]roof of theoretical control is insufficient; a showing of actual control is required.” (citation omitted)); Int'l Union of Petroleum, 870 F.2d at 1453-54 (“Control must be firmly placed in reality, ... not in an esoteric concept such as ‘inherent relationship.’ ” (internal citation omitted)); HTC Corp. v. Tech. Props. Ltd., 2011 WL 97787, at *4 (N.D. Cal. Jan. 12, 2011) (denying motion to compel defendant to produce technical documents possessed by its third-party chip manufacturer for similar reasons). The court finds defendant has satisfied its independent duty to ascertain whether it has a legal right to obtain technical documents from third parties. In its declaration, defendant's CEO testifies defendant has no overarching manufacturing or supply agreements but rather places purchase orders as needed. Feit Decl. ¶ 8. He adds defendant has no contractual right to demand technical information from its suppliers. Id. ¶ 16. Accordingly, plaintiff will have to resort to third-party subpoenas to obtain core technical documents not in defendant's possession. The court expects defendant will cooperate with plaintiff to facilitate that process by identifying relevant manufacturers and suppliers. D. RFP Nos. 12, 13, 18-21, and 38 RFP nos. 12, 13, 18-21, and 38 seek various categories of technical documents, including documents concerning the accused products' structures, operation, specifications, components, LED chips, and LED modules or packages. See JS at 8-15. Defendant initially objected to each of these RFPs on several grounds, including vagueness, ambiguity, overbreadth, undue burden, lack of custody and control, and privilege. See id. Based on the court's determination regarding the sufficiency of plaintiff's infringement contentions, defendant's vagueness, ambiguity, overbreadth, and undue burden objections are sustained in part and overruled in part because they depend on defendant's challenge to the contentions. As previously discussed, plaintiff is entitled to receive responsive, non-privileged documents in defendant's possession, custody, or control for each product listed in the infringement contentions.[4] But defendant does not have to produce documents related to other products that are not actually listed in the contentions. Defendant's relevance and proportionality objections, first raised in opposition to plaintiff's motion to compel, are overruled as waived. See, e.g., Hall v. Marriott Int'l, Inc., 2021 WL 1906464, at *10 (S.D. Cal. May 12, 2021) (absent good cause, objections to a discovery request raised for the first time in opposition to a motion to compel are waived). E. RFP Nos. 1 and 9 RFP nos. 1 and 9 seek catalogs listing LED lighting products offered for sale in the U.S. and advertising materials for the accused products. See JS at 34-35. In response to RFP no. 1, defendant initially objected on the grounds of overbreadth, undue burden, proportionality, relevance, vagueness, and ambiguity. See JS at 35. As for RFP no. 9, defendant objected based on vagueness, ambiguity, overbreadth, undue burden, confidentiality (including trade secrets), cumulative discovery, and proportionality. See JS at 35-36. *7 Based on the court's determination regarding the sufficiency of plaintiff's infringement contentions, defendant's objections are sustained in part and overruled in part to the extent they depend on defendant's challenge to the contentions. As previously discussed, plaintiff is entitled to receive responsive, non-privileged documents in defendant's possession, custody, or control for each product listed in the infringement contentions, but defendant does not have to produce documents related to other products that are not actually listed in the contentions. Defendant claims it has yet to meet and confer with plaintiff about its objections regarding the word “catalog,” the public availability of certain responsive documents, and the issue of documents that include information about accused and non-accused products. JS at 38. Although defendant was initially willing to produce responsive documents notwithstanding those objections (see id.), the universe of products for which defendant now has to produce discovery has been significantly expanded beyond what it had in mind. Accordingly, the court will not order defendant to supplement its production at this time. Instead, the court orders the parties to meet and confer about those specific objections to ensure that discovery proceeds as efficiently and proportionally as possible. F. Interrogatory No. 1 Interrogatory no. 1 asks defendant to identify – by name, model number, SKU, and any other identifying indicia – each of its lighting products that use or include LEDs as the light source element and have been made or sold in the U.S. or imported into the U.S. by or on defendant's behalf since September 1, 2014. See JS at 38. Defendant initially objected based on vagueness, ambiguity, public availability, relevance, overbreadth, undue burden, and proportionality. See JS at 38-39. The only objections preserved by defendant in opposition to the motion to compel concern the scope of the accused products. All other objections are overruled as waived. 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)). Based on the court's determination regarding the sufficiency of plaintiff's infringement contentions, defendant's remaining objections are sustained in part and overruled in part. As discussed, plaintiff is entitled to receive responsive, non-privileged information in defendant's possession, custody, or control for each product listed in the infringement contentions, but defendant does not have to produce information related to other products that are not actually listed in the contentions. G. Interrogatory No. 2 and RFP No. 8 Interrogatory no. 2 asks for sales and profit information regarding every accused product. See JS at 42. Defendant initially objected on the grounds of overbreadth, undue burden, proportionality, lack of possession, custody, or control, compound interrogatory, privilege, vagueness, and ambiguity. See JS at 43-44. RFP no. 8 seeks documents concerning sales and profit for each accused product. See JS at 44. Defendant initially objected based on vagueness, ambiguity, overbreadth, undue burden, confidentiality (including trade secrets), proportionality, and privilege. See JS at 44-45. Based on the court's determination regarding the sufficiency of plaintiff's infringement contentions, defendant's objections to these discovery requests are sustained in part and overruled in part to the extent they depend on defendant's challenge to the contentions. Again, plaintiff is entitled to receive responsive, non-privileged information and documents in defendant's possession, custody, or control for each product listed in the infringement contentions, but defendant does not have to produce information or documents related to other products that are not actually listed in the contentions. *8 Nevertheless, it appears that the parties have yet to meet and confer about defendant's objection that Interrogatory no. 2 is compound. See JS at 47. Although defendant was initially willing to produce responsive information notwithstanding that objection (see id.), the universe of accused products for which defendant now has to produce discovery has been significantly expanded beyond what defendant envisioned. Accordingly, the court will only order defendant to supplement its production for RFP no. 8 at this time. As for Interrogatory no. 2, the court orders the parties to meet and confer about defendant's objection that it is compound. All other objections are overruled as waived. See DIRECTV, Inc., 209 F.R.D. at 458. H. Interrogatory No. 4 and RFP Nos. 14-15 Interrogatory no. 4 asks defendant to identify the manufacturers and suppliers of LED chips, modules, and packages used or incorporated in the accused products. See JS at 48. Defendant initially objected on the bases of vagueness, ambiguity, overbreadth, undue burden, proportionality, and lack of possession, custody, or control. See JS at 48-49. RFP nos. 14 and 15 seek documents sufficient to identify the manufacturers and suppliers of the LED chips used or incorporated in the accused products. See JS at 49-50. Defendant initially objected on the bases of vagueness, ambiguity, overbreadth, undue burden, confidentiality, and lack of possession, custody, or control. See JS at 50-51. Based on the court's determination regarding the sufficiency of plaintiff's infringement contentions, defendant's objections to these discovery requests are sustained in part and overruled in part to the extent they depend on defendant's challenge to the contentions. Plaintiff is entitled to receive responsive, non-privileged information and documents in defendant's possession, custody, or control for each product listed in the infringement contentions, but defendant does not have to produce information or documents related to other products that are not actually listed in the contentions. All other objections are overruled as waived (see DIRECTV, Inc., 209 F.R.D. at 458), apart from defendant's note that it objects to the extent some of the information sought is outside its custody and control. See JS at 53. To the extent defendant lacks information or documents requested, the parties must meet and confer, and may also wish to discuss how defendant can most efficiently produce the information sought given the overlap between Interrogatory no. 4 and RFP nos. 14-15. IV. CONCLUSION Plaintiff's motion to compel is granted in part and denied in part as discussed above. The parties are directed to meet and confer further regarding any remaining discovery disputes in light of the court's rulings and comments. If during this process the parties believe it would help to discuss any issues with the Magistrate Judge, they may contact the Magistrate Judge's Courtroom Deputy Clerk to arrange a telephonic conference. Footnotes [1] Anyone can ask the PTO to reexamine a patent to determine whether prior art renders one or more of its claims invalid. Reexamination, Black's Law Dictionary (11th ed. 2019). For instance, an alleged infringer may seek reexamination to narrow the patent's scope and avoid liability. Id. In ex parte reexaminations, a challenger's participation is limited to producing prior art and responding to the patentee's statements regarding that new prior art. Ex Parte Reexamination, Black's Law Dictionary (11th ed. 2019). In ex parte reexaminations, there is no discovery or witnesses, and the challenger has no right to participate in an appeal. Id. In inter partes reexaminations, a challenger can produce prior art, respond to the patentee's statements regarding that new prior art, address the patentee's responses to any PTO actions, and request a hearing. Inter Partes Reexamination, Black's Law Dictionary (11th ed. 2019). [2] It is unclear if the parties ever actually formally requested adoption of any of the patent local rules. The court was unable to find any indication of a selection in the record. Nevertheless, for purposes of this motion, the court assumes the parties at least tacitly adopted the Patent Local Rules for the Northern District of California given that defendant cites to them in his opposition and plaintiff does not appear to object. [3] The parties claim there are twelve separate claim charts describing how the asserted Patent claims read on fifteen of defendant's products. See JS at 2, 31. As far as the court can tell, however, plaintiff's exhibit N is missing Exhibit 11 and only shows thirteen charted products. See Barron Decl., Ex. N. [4] In its motion to compel, plaintiff does not challenge defendant's privilege objections. See O'Connor v. Perez, 2020 WL 4748096, at *2 (E.D. Cal. Aug. 17, 2020) (party moving to compel discovery bears the burden of informing the court why any objections are not justified).