INTEX RECREATION CORP., ET AL. v. BESTWAY USA, INC., ET AL Case No. CV 16-3300-JAK(Ex) United States District Court, C.D. California Filed July 26, 2021 Counsel Andrew M. McCoy, Pro Hac Vice, R. Trevor Carter, Pro Hac Vice, Reid E. Dodge, Pro Hac Vice, Faegre Drinker Biddle and Reath LLP, Indianapolis, IN, Tarifa Belle Laddon, Faegre Drinker Biddle and Reath LLP, Los Angeles, CA, for Intex Recreation Corp., et al. Stephen M. Lobbin, SML Avvocati PC, Los Angeles, CA, Steven A. Caloiaro, Dickinson Wright PLLC, Reno, NV, for Bestway (USA), Inc., et al. Eick, Charles F., United States Magistrate Judge Proceedings: (IN CHAMBERS) *1 The Court has read and considered all papers filed in support of and in opposition to “Plaintiff's Motion to Compel Responses to Discovery Requests” (“the Motion”), filed June 24, 2021. The Court heard oral argument on July 23, 2021. The Motion is granted as to Interrogatory No. 9 on the understanding that the interrogatory seeks only domestic financial information, and with the additional limitation that no documents or ESI need be identified item by item in the answer if the responsive documents and ESI are produced as if Interrogatory No. 9 had been a Rule 34 request. The Motion is conditionally granted in part as to Request for Production No. 1. Unless the parties otherwise agree, Defendants shall produce one sample of each accused product, and Plaintiff promptly shall pay Defendants one half of the retail price of each sample destroyed by Plaintiff's inspection or testing. See Fed. R. Civ. P. 26(c)(1); Mirchandani v. Home Depot, USA, Inc., 235 F.R.D. 611, 613-17 (D. Md. 2016); Aerocrine AB v. Apieron Inc., 267 F.R.D. 105, 112-13 (D. Del. 2010); Tessera, Inc. v. Advanced Mico Devices, Inc., 2006 WL 2587015, at *4 (N.D. Cal. Sept. 8, 2006); Caliper Techs. Corp. v. Molecular Devices Corp., 213 F.R.D. 555, 558 (N.D. Cal. 2003). To the extent the Motion is granted, the Court has found that the discovery ordered is relevant, nonprivileged and proportional to the needs of the case. See Fed. R. Civ. P. 26(b). To the extent the Motion is granted, Defendants shall serve the interrogatory answer, produce the documents and produce the samples within twenty-eight (28) days of the date of this Order. Except as expressly stated herein, the Motion is denied. The Motion is denied as to Interrogatory No. 17 because Plaintiff has failed to demonstrate a “baseline” relevance of the discovery sought and because, under the circumstances presented, the discovery sought is not proportional to the needs of the case. See Fed. R. Civ. P. 26(b); Invensas Corp. v. Renesas Electronics Corp., 2013 WL 12146531 (D. Del. May 8, 2013); see also American Seating Co. v. USSC Group, Inc., 514 F.3d 1262, 1268-69 (Fed. Cir. 2008). The Motion is denied as to Requests for Production Nos. 36, 38, 40, 55, 71, 75, 85, 89 and 91 because, under the circumstances presented, the foreign-based discovery sought is not proportional to the needs of the case. See Fed. R. Civ. P. 26(b). The Motion is denied without prejudice to the extent the Motion seeks a remedy for alleged spoliation because Plaintiff has failed to demonstrate the destruction of any material evidence, the intent with which any such destruction occurred or any prejudice to Plaintiff resulting from any such destruction. See generally, Phillips & Stevenson, Federal Civil Procedure Before Trial, § 11:151 (The Rutter Group 2021). Furthermore, issues of spoliation would be more properly addressed by the District Judge in the context of a fuller evidentiary record on summary judgment, during pretrial proceedings or at trial. See NuVasive, Inc. v. Kormanis, 2019 WL 1171486, *12 (M.D. N.C. Mar. 13, 2019), adopted, 2019 WL 1418145 (M.D. N.C. Mar. 29, 2019); Tesoriero v. Carnival Corp., 2017 WL 8895347, at *24 (S.D. Fla. Sept. 22, 2017), adopted, 2018 WL 1894717 (S.D. Fla. Mar. 23, 2018), aff'd on other grounds, 2020 WL 3969265 (11th Cir. July 14, 2020), cert. denied, 2021 WL 1520816 (U.S. Apr. 19, 2021); Baskerville v. Albertson's, LLC, 2016 WL 7030446, at *2-3 (D. Nev. Jan. 7, 2016); Anderson v. Otis Elevator Co., 2012 WL 5493383, at *6 (E.D. Mich. Nov. 13, 2012). *2 Any party seeking review of this Order shall cause the preparation and filing of a transcript of the July 23, 2021 hearing.