Lateral Link Group, LLC v. Micah Springut, et al Case No. LA CV14-05695 JAK (JEMx) United States District Court, C.D. California Filed October 07, 2016 Counsel Alexa L. Lewis, Monster Energy Company, Corona, CA, Elaine K. Kim, Karin G. Pagnanelli, Mitchell Silberberg and Knupp LLP, Los Angeles, CA, Robert Tauler, Tauler Smith LLP, Gil Nathan Peles, Tauler Smith LLP, Los Angeles, CA, for Lateral Link Group, LLC. Milton Springut, Pro Hac Vice, Springut Law PC, Tal S. Benschar, Pro Hac Vice, Springut Law PC, New York, NY, Sarah A. Silbert, Sarah Silbert, Studio City, CA, for Micah Springut, et al. Kronstadt, John A., United States District Judge Proceedings: (IN CHAMBERS) ORDER RE MOTION FOR CONTEMPT AND PRECLUSIVE SANCTIONS (DKT. 212); REPORT AND RECOMMENDATION OF DISCOVERY REFEREE (DKT. 221) I. BACKGROUND *1 On July 22, 2014, Lateral Link Group, LLC (“Plaintiff”) brought this trademark infringement action against Habeas Corp. doing business as Lateral.ly, and Micah Springut (collectively “Defendants”). Complaint, Dkt. 1. The parties offer recruiting services to attorneys seeking new positions. Id. Plaintiff alleges that the use of “Lateral.ly” infringes its trademark in “Lateral Link.” Id. The operative complaint advances five causes of action: (1) infringement of a federally registered trademark, 15 U.S.C. § 1114; (2) federal unfair competition, 15 U.S.C. § 1125(a); (3) common law trademark infringement; (4) common law unfair competition; and (5) unfair competition, Cal. Bus. & Prof. Code § 17200. First Amended Complaint, Dkt. 61. On April 11, 2016, Defendants filed this Motion for Contempt and Preclusive Sanctions pursuant to Fed. R. Civ. P. 37 ((“Motion”), Dkt. 212). The Motion relates to certain prior orders. One is an order by Magistrate Judge McDermott granting Defendant's motion to compel documents relating to Plaintiff's online database for use in its legal recruiting business. Dkt. 90. The others are orders by Discovery Referee Title relating to Defendants' efforts to conduct discovery regarding Plaintiff's quality control of its trademark. The portion of the Motion relating to order by Judge McDermott was referred to him for the preparation of a report and recommendation (“R&R”). Dkt. 216. After Judge McDermott issued the R&R (Dkts. 219, 220), each side filed objections. Dkts. 222, 223, 225. After reviewing and considering the R&R and the objections, the Court accepted the R&R without change. Dkts. 226, 227. This Order relates to the portion of the Motion regarding orders by Referee Title, which was referred to her for the preparation of an R&R. Dkt. 216. Referee Title did so, and found that Plaintiff had complied substantially, but not entirely, with her orders. Dkt. 221. Defendants filed objections. Dkt. 224. For the reasons stated in this Order, the R&R prepared by Referee Title is adopted. II. THE R&R of REFEREE TITLE A. The Underlying Matters Referee Title explained the procedural history of the matters at issue in the R&R: By letter dated November 18, 2015, Defendants sought an order from the Referee that would require Michael Allen, who had testified as a 30(b)(6) witness on behalf of Plaintiff on October 22, 2015, to be deposed for another day. Defendants contended that Plaintiff's counsel improperly interposed objections and instructions to certain deposition questions, thereby preventing them from obtaining all the testimony to which they were entitled. Defendants sought to ask Plaintiff's 30(b)[(]6) witness additional questions on a variety of topics, including quality control measures. Plaintiff in turn requested the issuance of a protective order prohibiting Defendants from taking further deposition testimony of Mr. Allen, asserting that Defendants' prior deposition questioning had been conducted in a bad faith and harassing manner. The Referee denied without prejudice the request to order another day of deposition on the broad categories to which the witness had already provided testimony. However, by her Orders of December 7, 2015 and January 4, 2016, the Referee ordered Plaintiff to provide additional written responses to certain questions that had been posed at Mr. Allen's deposition, including some regarding quality control. The Referee reserved the right to order a further oral deposition if Plaintiff's written responses proved to be inadequate. *2 Plaintiff provided additional written responses to the questions ordered on January 11, 2016 (the “Written Responses”). As set forth in her discovery ruling of January 20, 2016, the Referee found certain of the Written Responses inadequate and ordered Plaintiff to produce a 30(b)[(]6) witness for a further telephonic deposition, for a maximum of three hours. Defendants took the deposition of Plaintiff's second 30(b)(6) witness, Andrew Wood, on February 24, 2016. Dkt. 221 at 2-3 (internal citations and footnotes omitted). Referee Title then found that, at his deposition, Wood was unable to provide all reasonably requested information relating to Plaintiff's quality control measures. Id. This did not comply with what she had ordered Plaintiff to provide. Id. B. Defendants' Objections Defendants objected to Referee Title's conclusion that Plaintiff “substantially complied” with her discovery orders regarding the production of a 30(b)(6) witness able to testify on quality control. Dkt. 224. They argued that Wood was completely unprepared to testify on quality control. For example, they pointed to Wood's statement that it was his “understanding” that periodic reviews were conducted by regional principals based on “calendar schedules and offhand remarks.” Id. at 9. Defendants also disagreed with Referee Title's characterization of several of Wood's responses to questions in the deposition, and with her statement that quality control was not the “principal subject” of Wood's deposition. Id. at 9-10. C. Analysis 1. Legal Standards The R&R addressed only a factual question: Whether Plaintiffs complied with Referee Title's discovery orders. The findings of fact of a special master, including a discovery referee, are reviewed for clear error. Swoboda v. Pala Min., Inc., 844 F.2d 654, 656 (9th Cir. 1988); First United Methodist Church of San Jose v. Atl. Mut. Ins. Co., No. C-95-2243 DLJ, 1995 WL 566026, at *1 (N.D. Cal. Sept. 19, 1995). This standard is significantly deferential, requiring reversal “only if the district court is left with the definite and firm conviction that a mistake has been made.” Computer Economics, Inc. v. Gartner Group, Inc., 50 F. Supp. 2d 980, 983 (S.D. Cal. 1999) (quoting Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir.1997)). 2. Application The Court has reviewed Referee Title's report and Defendants' objections. Based on that review, the Court adopts the factual findings in the report, including that Plaintiff complied substantially, but not fully, with Referee Title's orders. Therefore, the Court finds that contempt and preclusive sanctions are not appropriate and DENIES the Motion. However, within 14 days of the issuance of this Order, or at a later date to which the parties stipulate, Plaintiff shall comply with the orders of Referee Title that were issued on December 7, 2015, January 4, 2016 and January 20, 2016, by presenting a second Rule 30(b)(6) witness for a deposition. That witness shall be prepared and competent to respond to the specific questions relating to quality control approved by Referee Title in her prior orders. Furthermore, Defendants may file an application for an award of attorney fees relating to the matters at issue. If such an application is made, it shall be referred to Referee Title for the preparation of an R&R. IT IS SO ORDERED.