Jennifer A. BANDLOW v. NET HEALTH SHOPS, LLC, etc., et al Case No. 2:21-cv-06291-FLA-JC United States District Court, C.D. California Filed January 21, 2022 Counsel Danielle Nicole Lincors, Arash Homampour, Homampour Law Firm PLC, Sherman Oaks, CA, Timaiah Smith, Edward M. Lyman, III, Cochran Firm California, Los Angeles, CA, Marcelis E. Morris, Shernoff Bidart Echeverria LLP, Claremont, CA, for Jennifer Bandlow. Craig Alan Roeb, David Allen Napper, Chapman Glucksman Dean and Roeb, Los Angeles, CA, Wilson C. Aurbach, Pro Hac Vice, Russell G. Herman, Pro Hac Vice, Adolfo R. Rodriguez, Jr., Pro Hac Vice, Rodriguez Law Firm, P.C., Dallas, TX, Michael A. Hewitt, Pro Hac Vice, Tollefson Bradley Mitchell and Melendi, LLP, Dallas, TX, for Defendant Net Health Shops, LLC. Ross Eleazer Bautista, Perkins Coie LLP, San Diego, CA, David Allen Napper, Craig Alan Roeb, Chapman Glucksman Dean and Roeb, Los Angeles, CA, for Defendant Amazon.com International, Inc. James Edward Siepler, Law Offices Schneider Holtz and Moore, Glendale, CA, for Defendants SRMX Capital, LLC, BluWorld of Water, LLC. Robert T. Mackey, Scott Steven Mizen, Serena Lee Nervez, Clara L. Porter, Veatch Carlson LLP, Los Angeles, CA, for Defendant Lumina Products, Inc. Chooljian, Jacqueline, United States Magistrate Judge Proceedings: (In Chambers) ORDER SUBMITTING, VACATING HEARING ON, AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL (DOCKET NO. 36) I. Summary *1 Pending before the Court and set for hearing on January 25, 2022 at 9:30 a.m. is Plaintiff's Motion to Compel Defendant Net Health Shops, LLC, dba Sunnydaze Decor and dba Serenity Health & Home Decor (“Net Health Shops” or “Defendant”) to Provide Further Responses to Plaintiff Jennifer A. Bandlow's First Request for Production of Documents (“Plaintiff's Motion”) which is accompanied by a Joint Stipulation (alternatively, “JS”).[1] Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds Plaintiff's Motion appropriate for decision without oral argument. The hearing calendared for January 25, 2022 is hereby vacated and the matter taken off calendar. Based upon the Court's consideration of the parties' submissions in connection with Plaintiff's Motion, and for the reasons set forth and as detailed below, the Court grants in part and denies in part Plaintiff's Motion. To the extent the Court grants Plaintiff's Motion, Defendant shall produce the supplemental responses/documents called for by this Order within thirty (30) days. II. Background Plaintiff in this action essentially claims that on July 10, 2019, she was burned at her neighbor's house by a defective Sunnydaze Decor branded Astratto Ventless Bio Ethanol Tabletop Fireplace (YL-130) (“Fireplace”) that exploded when her neighbor refueled it. (JS at 1). The Fireplace was assertedly shipped by a Chinese manufacturer to Defendant Net Health Shop which sold it to Plaintiff's neighbor on Amazon.com. (JS at 1). On or about February 8, 2021, Plaintiff filed the Original Complaint in Los Angeles Superior Court against Net Health Shops, Amazon.com International, Inc., SRMX Capital, LLC, Bluworld of Water, LLC and Does 1 through 50, asserting negligence and product liability claims. (Docket No. 1-1 at 4). Plaintiff thereafter filed an amendment to substitute in Amazon.com, Inc. for Doe No. 1. (Docket No. 1-1 at 70). On April 30, 2021, Defendant Net Health Shops filed an Answer to the Complaint and a Cross-Complaint against SRMX Capital, LLC and BlueWorld of Water, LLC for indemnity, declaratory relief, apportionment, contribution. (Docket No. 1-1 at 72; Docket No. 1-1 at 82; Docket No. 1-2 (state court docket)). On August 4, 2021, Amazon.com, Inc. – with the concurrence of the other defendants – removed this action to federal court. (Docket No. 1). At the time of removal, the discovery cut-off in the case was apparently July 11, 2022, a final status conference was set for July 25, 2022, and the trial was set for August 8, 2022. See Plaintiff's Motion at i; Docket No. 1-2 (state court docket). On August 6, 2021, the District Judge issued an Initial Standing Order governing this federal action. (Docket No. 6). Among other things, such order reflects that (1) the court will issue an order setting a scheduling conference as required by Fed. R. Civ. P. 26 and the Local Rules of this court; (2) unless there is a likelihood that, upon motion by a party, the court would order that discovery be stayed, the parties should begin to propound discovery before the Scheduling Conference and must comply fully with the letter and spirit of Fed. R. Civ. P. 26(a) and produce discovery promptly; and (3) at the Scheduling Conference, the court will impose firm deadlines governing the completion of discovery pursuant to Fed. R. Civ. P.16(b). (Docket No. 6 at 4, ¶ 5b; Docket No. 6 at 17, ¶ 17). *2 On September 24, 2021, Plaintiff filed a First Amended Complaint in this action. (Docket No. 10). On October 25, 2021, Plaintiff filed the operative Second Amended Complaint in this action, again asserting negligence and product liability claims against Defendant Net Health Shops, Amazon.com Inc., SRMX Capital, LLC, Bluworld of Water, LLC and Does 1 through 50.(Docket No. 21). On November 5, 2021, Net Health Shops filed an Answer to the Second Amended Complaint, responding to its allegations and asserting multiple affirmative defenses, including contribution/comparative fault, contributory negligence, estoppel, intervening/superseding cause, active/primary liability, unclean hands, unintended/abnormal use, misuse/modification, unavoidable incident or condition, and several liability. (Docket No. 23). On October 20, 2021, this Court issued a modified version of the parties' stipulated protective order. (Docket No. 17). Prior to the removal of this action to federal court, Plaintiff requested documents from Defendant Health Shops, including Document Request Nos. 13, 29, 30, 35, 42, 46, 57, 64, 65, 79, 80, 87, and 104 (“Document Requests in Issue”). (JS at ii, 1). Defendant Net Health Shops asserted multiple objections to the Document Requests in Issue and declined to produce documents responsive to some or all of such requests.[2] (JS at 3-27). Plaintiff's Motion followed. As the parties have not yet filed a Fed. R. Civ. P. 26(f) Report and no federal Scheduling Order has yet issued, the dates set in state court continue to govern the action at this juncture.[3] Having said that, this Court views it to be probable that the District Judge will set superseding new dates at an appropriate juncture – including separate fact discovery cut-off and expert discovery cut-off deadlines. See District Judge Fernando L. Aenlla-Rocha's Standard Order Setting Scheduling Conference (http://www.cacd.uscourts.gov/sites/default/files/documents/FLA/AD/Judge%20Aenlle-Rocha%20Order%20S etting%20Scheduling%20Conference%20%289-29-21%29.pdf). III. Pertinent Law Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Information within the foregoing scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). *3 Pursuant to Rule 34, any party may serve on any other party a request for the production or inspection of documents within the scope of Rule 26(b) which are in the responding party's possession, custody or control. Fed. R. Civ. P. 34(a). Documents are deemed to be within a party's possession, custody or control if the party has actual possession, custody or control thereof or the legal right to obtain the property on demand. In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995), cert. dismissed, 517 U.S. 1205 (1996). Accordingly, a party has an obligation to conduct a reasonable inquiry into the factual basis of its responses to discovery, and based on that inquiry, a party responding to a Rule 34 production request is under an affirmative duty to seek that information reasonably available to it from its employees, agents, or others subject to its control. A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006) (citations and internal quotation marks omitted). Unless excused by a protective order, in response to a request for the production of documents a party must, within 30 days of service thereof and as to each item or category, either: (1) state that the inspection will be permitted/production will be made; or (2) state with specificity the grounds for objecting to the request, including the reasons, and state whether any responsive materials are being withheld on the basis of that objection. Fed. R. Civ. P. 34(b)(2)(A)-(C). If the responding party states that it will produce documents, such production must be completed no later than the time specified in the request or another reasonable time specified in the response. Fed. R. Civ. P. 34(b)(2)(B). If a party fails timely to object to discovery requests, such a failure generally constitutes a waiver of any objections which a party might have to the requests.[4] See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1991) (“It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.”) (citation omitted), cert. dismissed, 506 U.S. 948 (1992); Apple Inc. v. Samsung Electronic Co., Ltd., 2012 WL 952254, *2 (N.D. Cal. Mar. 20, 2012) (“Objections not interposed in a timely initial response may not be held in reserve and interposed after the period allowed for response ... ”) (citation omitted); Ramirez v. County of Los Angeles, 231 F.R.D. 407, 409-10 (C.D. Cal. 2005) (court declined to consider objections that were not asserted in responding party's original discovery responses based upon party's failure timely to make such objections). Notwithstanding the foregoing, the Ninth Circuit has rejected a per se waiver rule that deems a privilege waived if a privilege log is not produced within Rule 34's time limit. Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont. (“Burlington”), 408 F.3d 1142, 1149 (9th Cir.), cert. denied, 546 U.S. 939 (2005). Instead, using the Rule 34 deadline as a default guideline, a district court should make a case-by-case determination, taking into account the following factors: (1) the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient); (2) the timeliness of the objection and accompanying information about the withheld documents (where service within the Rule 34 deadline as a default guideline, is sufficient); (3) the magnitude of the document production; and (4) other particular circumstances of the litigation that make responding to discovery unusually easy or unusually hard. Id. These factors should be applied in the context of a holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process. Id. They should not be applied as a mechanistic determination of whether the information is provided in a particular format. Id. IV. Discussion and Orders *4 First, although Plaintiff's Motion at certain points purports to seek relief regarding Document Request Nos. 46 and 65 (among the other Document Requests in Issue) (see JS at ii, 1), the Joint Stipulation does not contain the substance of such requests, Defendant's responses thereto, or any arguments specific thereto. The Court presumes from such omission that the parties either resolved their disputes as to Document Request Nos. 46 and 65 or that Plaintiff ultimately elected not to pursue its motion relative thereto. In any event, to the extent Plaintiff's Motion seeks to compel the production of supplemental responses/documents responsive to Document Request Nos. 46 and 65, it is denied as there is no basis in the record to afford relief relative thereto. Second, the Court addresses Plaintiff's argument throughout Plaintiff's Motion that Defendant's responses to the remaining Document Requests in Issue are deficient in part because Defendant failed to comply with the Federal Rules of Civil Procedure in one or more respects. See, e.g., JS at 4-5, JS at 6-7 (citing Fed. R. Civ. P. 26 & Fed. R. Civ. P. 34(b)). However, as noted above, the record does not reflect whether Defendant's responses were made before or after removal of this action and – absent evidence that Defendant's responses were made after removal – it accordingly would not be appropriate to deem Defendant's responses deficient because they do not comport with the procedural requirements of Rules 26 and 34. See supra note 2. Having said that, the Court may nonetheless elect to require Defendant to provide supplemental responses that comport with the Federal Rules of Civil Procedure going forward. Third, although Defendant originally interposed multiple objections to each of the remaining Document Requests in Issue, Defendant does not present argument relative to most of such objections in opposition to Plaintiff's Motion. To the extent Defendant does not present argument relative to an originally interposed objection, the Court presumes that Defendant is not standing on such objection (i.e., that it is not refraining from producing responsive documents based thereon) and accordingly overrules such objections as moot[5] and addresses only the objections as to which Defendant presents argument in opposition to Plaintiff's Motion. However, irrespective of whether a pertinent objection has been made/preserved, the Court may elect to narrow certain Document Requests in Issue to the extent it views such requests to call for documents not proportional to the needs of the case, considering the factors identified in Rule 26(b)(1). Fourth, the Court addresses Defendant's argument that several of the Document Requests in Issue (Nos. 13, 29, 30, 42, 57) are premature in that they seek expert related work and opinion even though expert discovery has not yet commenced. (JS at 5, 7, 9-10, 14, 16-17). The Court sustains in part and overrules in part this objection and grants in part and denies in part Plaintiff's Motion as to Document Request Nos. 13, 29, 30, 42 and 57. Such document requests are akin to so-called “contention interrogatories” and essentially call for Defendant to produce all documents that support various contentions (e.g., that the incident – the explosion of the Fireplace on July 10, 2019 that injured Plaintiff – did not result from a defect of the Fireplace, that abuse/misuse caused or contributed to the cause of the explosion at the time of incident, that someone other than Defendant is responsible in whole or in part for the incident), to the extent Defendant so contends. Contention interrogatories are generally proper, but in some cases are disfavored early in proceedings before substantial discovery has taken place. See In re Ebay Seller Antitrust Litigation, 2008 WL 5212170 *1 (N.D. Cal. 2008) (courts generally disfavor contention interrogatories asked before discovery undertaken; courts tend to deny such interrogatories filed before substantial discovery has taken place, but grant them if discovery almost is complete); O'Connor v. Boeing North American, Inc., 185 F.R.D. 272, 281-82 (C.D. Cal. 1999) (contention interrogatories permissible and acceptable); Cable & Computer Technology, Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997) (granting motion to compel responses to contention interrogatories prior to completion of discovery; plaintiff may answer interrogatory based on information it has to date and may later amend the answer with leave of court or supplement it, as it has an obligation to do); In re Convergent Technologies Securities Litigation, 108 F.R.D. 328, 338 (N.D. Cal. 1985) (expressing skepticism about use of contention interrogatories at early stages of discovery). Here, the action has been pending for nearly a year, but has been in federal court for less than six months and is still in a relatively early stage in federal court. As noted above, the District Judge has not yet set any dates, let alone discovery/expert discovery deadlines. Having said that, the dates set in state court – including the July 22, 2022 discovery deadline – currently govern. Moreover, Defendant presumably had some factual basis for asserting the affirmative defenses which to some degree relate/correspond to Document Request Nos. 13, 29, 30, 42, 57 (e.g., contribution/comparative fault, contributory negligence, estoppel, intervening/superseding cause, active/primary liability, unclean hands, unintended/abnormal use, misuse/modification, unavoidable incident or condition, and several liability). Cf. In re One Bancorp Securities Litigation, 134 F.R.D. 4, 8 (D. Me. 1991) (requiring the answer to contention interrogatories is “[c]onsistent with Rule 11 of the Federal Rules of Civil Procedure, [which requires that parties] must have some factual basis for the[ir] allegations ...”). Accordingly, the Court, as detailed below in its discussion of the individual Document Requests in Issue, requires Defendant to provide supplemental responses – short of expert opinion/discovery – as to Document Request Nos. 13, 29, 30, 42, 57. *5 The Court otherwise addresses the remaining Discovery Requests in Issue and the parties' arguments relative thereto below. Request No. 13 This request calls for Defendant to produce any and all documents/tangible things/electronically stored information that supports it contention, if it so contends, that the incident (i.e., the explosion of the Fireplace on July 10, 2019 that injured Plaintiff) did not result from a defect of the Fireplace. Defendant objected to this request on multiple bases, but in connection with Plaintiff's Motion, essentially argues only that the request is premature because it calls for expert discovery related work/opinion regarding the cause of the explosion/whether or not there was a defect in the Fireplace even though expert discovery has not commenced. As discussed above, the Court sustains in part and overrules in part this objection and grants in part and denies in part Plaintiff's Motion as to Document Request No. 13. Defendant shall provide a supplemental response to this request and shall produce those documents currently in its possession, custody or control – other than expert opinions/reports/work product – on which it may rely in this action to establish that the incident did not result from a defect of the Fireplace. For example, to the extent it is Defendant's contention that Plaintiff's neighbor's actions caused/partially caused the incident, Defendant must produce documents on which it may rely in this action to establish the conduct in issue (e.g., testimony/statements of the neighbor or Plaintiff regarding the same, Fireplace instructions/warning labels with which the neighbor may have failed to comply), but need not produce at this juncture an expert opinion regarding the same. To the extent Defendant does not contend that the incident did not result from a defect of the Fireplace or does not currently have possession, custody or control of any documents – other than expert opinions/reports/work product – on which it may rely to support a contention that the incident did not result from a defect of the Fireplace, Defendant shall instead produce a supplemental response so stating. In either event, to the extent appropriate, Defendant must timely supplement its response in accordance with Fed. R. Civ. P. 26(e) and the expert discovery schedule set by the District Judge. Request No. 29 This request calls for Defendant to produce any and all documents/tangible things/electronically stored information that reflect what it contends was the cause of the incident. Defendant objected to this request on multiple bases, but in connection with Plaintiff's Motion, essentially argues only that the request is premature because it calls for expert discovery related work/opinion regarding the cause of the explosion even though expert discovery has not commenced. As discussed above, the Court sustains in part and overrules in part this objection and grants in part and denies in part Plaintiff's Motion as to Document Request No. 29. Defendant shall provide a supplemental response to this request and shall produce those documents currently in its possession, custody or control – other than expert opinions/reports/work product – on which it may rely in this action to establish the cause of the incident. To the extent Defendant does not currently have possession, custody or control of any documents – other than expert opinions/reports/work product – on which it may rely to establish the cause of the incident, Defendant shall instead produce a supplemental response so stating. In either event, to the extent appropriate, Defendant must timely supplement its response in accordance with Fed. R. Civ. P. 26(e) and the expert discovery schedule set by the District Judge. Request No. 30 *6 This request calls for Defendant to produce any and all documents/tangible things/electronically stored information that reflect what it contends was the cause of Plaintiff's injuries. Defendant objected to this request on multiple bases, but in connection with Plaintiff's Motion, essentially argues only that the request is premature because it calls for expert discovery related work/opinion regarding the cause of the explosion even though expert discovery has not commenced. As discussed above, the Court sustains in part and overrules in part this objection and grants in part and denies in part Plaintiff's Motion as to Document Request No. 30. Defendant shall provide a supplemental response to this request and shall produce those documents currently in its possession, custody or control – other than expert opinions/reports/work product – on which it may rely in this action to establish the cause of the injuries sustained by Plaintiff during the incident. To the extent Defendant does not currently have possession, custody or control of any documents – other than expert opinions/reports/work product – on which it may rely to establish the cause of Plaintiff's injuries, Defendant shall instead produce a supplemental response so stating. In either event, to the extent appropriate, Defendant must timely supplement its response in accordance with Fed. R. Civ. P. 26(e) and the expert discovery schedule set by the District Judge. Request No. 35 This request calls for Defendant to produce any and all documents/tangible things/electronically stored information that reflect the profit Defendant made for each Sunnydaze Decor branded Astratto Ventless Bio Ethanol Tabletop Fireplace (YL-130) sold. Defendant objected to this request on multiple bases, but in connection with Plaintiff's Motion, essentially asserts only a relevance argument, stating that the request calls for information that is not reasonably calculated to lead to admissible evidence. More specifically, Defendant asserts that any profit it made has nothing to do with the alleged incident or harm to Plaintiff as there is no information or facts to suggest that Defendant “value engineered” any part of the subject fireplace or made a determination, for example, to use a cheaper material in order to increase its profits. Plaintiff argues that the profit Defendant made for the subject fireplaces is relevant to its “design defect theory,” the relationship of the defendants to one another since the product was sold on Amazon.com which likewise profited from the sale of the product, and bias. Plaintiff indicates that Defendant sold 290 of the same model of fireplace at issue from the time it was manufactured to the present. Defendant's profits from the sale of the subject fireplaces – particularly if they are significant – could at least arguably support a contention that it had a financial motive to ignore or turn a blind eye to defects therein. Accordingly, the Court overrules Defendant's relevance objection and orders Defendant to produce documents sufficient to reflect the profit it made for each subject Sunnydaze Decor branded Astratto Ventless Bio Ethanol Tabletop Fireplace (YL-130) it sold from January 1, 2017, to the time of the incident. Request No. 42 This request calls for Defendant to produce any and all documents/tangible things/electronically stored information that reflect and/or evidence the abuse or misuse Defendant contends caused or contributed to the cause of the explosion at the time of the incident. Defendant objected to this request on multiple bases, but in connection with Plaintiff's Motion, essentially argues only that the request is premature because it calls for expert discovery related work/opinion regarding the cause of the explosion/whether there was abuse or misuse of the product which could have led to causing the incident even though expert discovery has not commenced. As discussed above, the Court sustains in part and overrules in part this objection and grants in part and denies in part Plaintiff's Motion as to Document Request No. 42. Defendant shall provide a supplemental response to this request and shall produce those documents currently in its possession, custody or control – other than expert opinions/reports/work product – on which it may rely in this action to establish that abuse or misuse of the Fireplace caused or contributed to the cause of the explosion at the time of the incident. To the extent Defendant does not contend that abuse or misuse of the Fireplace caused or contributed to the cause of the explosion at the time of the incident or Defendant does not currently have possession, custody or control of any documents – other than expert opinions/reports/work product – on which it may rely to establish the same, Defendant shall instead produce a supplemental response so stating. In either event, to the extent appropriate, Defendant must timely supplement its response in accordance with Fed. R. Civ. P. 26(e) and the expert discovery schedule set by the District Judge. Request No. 57 *7 This request calls for Defendant to produce any and all documents/tangible things/electronically stored information that support Defendant's contention, if it so contends, that someone else is responsible in whole or in part for the incident. Defendant objected to this request on multiple bases, but in connection with Plaintiff's Motion, essentially argues only that the request is premature because it calls for expert discovery related work/opinion regarding whether someone else is responsible in whole or in part for the incident/where responsibility lies even though expert discovery has not commenced. As discussed above, the Court sustains in part and overrules in part this objection and grants in part and denies in part Plaintiff's Motion as to Document Request No. 57. Defendant shall provide a supplemental response to this request and shall produce those documents currently in its possession, custody or control – other than expert opinions/reports/work product – on which it may rely in this action to establish that someone else is responsible in whole or in part for the incident. To the extent Defendant does not contend that someone else is responsible in whole or in part for the incident or Defendant does not currently have possession, custody or control of any documents – other than expert opinions/reports/work product – on which it may rely to establish the same, Defendant shall instead produce a supplemental response so stating. In either event, to the extent appropriate, Defendant must timely supplement its response in accordance with Fed. R. Civ. P. 26(e) and the expert discovery schedule set by the District Judge. Request No. 64 This request calls for Defendant to produce any and all documents/tangible things/electronically stored information that reflect and/or evidence each and every label or written material included with each and every fireplace (i.e., any type of bio-ethanol fueled portable firepits, firepots, fireplace made by Defendant, including the Sunnydaze Decor branded Astratto Ventless Bio Ethanol Tabletop Fireplace (YL-130)) it designed, manufactured or sold from January 1, 2017, to the time of the incident (July 10, 2019). Defendant asserted multiple objections to the request but, with a reservation of its right to supplement its response, nonetheless stated that “[a]fter a diligent search and reasonably [sic] inquiry ... with respect to the tabletop fireplace at issue in this litigation, [it was] produc[ing] all responsive documents in its possession, custody and control.” Plaintiff takes issue with the foregoing response because Defendant does not indicate that it is producing materials relative to fireplaces aside from the actual Fireplace involved in the incident and argues that “[l]iterature from the other fireplaces by the same manufacturer is relevant to notice and knowledge.” Plaintiff also complains that Defendant failed to identify which of the documents it produced are responsive to this request. Defendant argues that this request is overbroad and not reasonably calculated to lead to admissible evidence to the extent it seeks documents regarding anything other than the Fireplace in issue and that requiring it to perform a search of each and every fireplace it has ever sold in the past five years would be burdensome and oppressive, especially in light of its prior production of the same materials for the Fireplace at issue in this litigation. While it appears to the Court that the request only calls for materials corresponding to fireplaces sold for approximately a year and a half (not five years as Defendant argues), the Court finds that to the extent this request calls for extensive material regarding fireplaces other than the actual Fireplace in issue (as to which Defendant has already produced responsive documents), it calls for documents not proportional to the needs of the case, considering the factors identified in Rule 26(b)(1). Accordingly, the Court denies Plaintiff's Motion as to this request except to the extent it calls for Defendant to identify the documents it has produced that are responsive to this request. Defendant shall produce a supplemental response identifying such documents (ideally by document number to the extent a numbering system has been employed). Request No. 79 This request calls for Defendant to produce any and all documents/tangible things/electronically stored information that reflect and/or evidence all communications (including before and after the incident) with anyone (including but not limited to the U.S. Consumer Product Safety Commission) which relate in any way to any fireplace due to an explosion which was designed, manufactured, or distributed by Defendant. Defendant asserted multiple objections to the request but nonetheless responded that it “did not design, manufacture or distribute any explosion.” Plaintiff suggests, and the Court agrees, that Defendant has deliberately misread this request. Plaintiff further represents that the “U.S. Consumer Product Safety Commission sent multiple communications regarding the hazards of such fireplaces” and argues that Plaintiff is entitled to the requested communications as “[k]nowledge or notice of the same is significant.” Defendant argues that the request is overbroad to the extent it refers to “any” fireplace that has been distributed by Defendant for all time and as to time and not reasonably calculated to lead to admissible evidence. The Court sustains in part and overrules in part Defendant's objections and grants in part and denies in part Plaintiff's Motion as to this request. Defendant shall provide a supplemental response to this request and shall produce those documents currently in its possession, custody or control for the period of January 1, 2017 to July 10, 2019 that constitute or memorialize communications regarding explosions relative to fireplaces designed, manufactured, or distributed by Defendant which communications are from (i) the U.S. Consumer Product Safety Commission; (ii) other governmental/regulatory authorities; (iii) consumers to whom Defendant sold fireplaces; and (iv) other entities in the design/manufacture/distribution channel of such fireplaces. Request No. 80 *8 This request calls for Defendant to produce any and all documents/tangible things/electronically stored information that reflect and/or evidence all actions Defendant took in response to all communications (including before and after the incident) with anyone (including but not limited to the consumers who filed reports with the U.S. Consumer Product Safety Commission) which relate in any way to any fireplace due to an explosion which was designed, manufactured, or distributed by Defendant. Defendant asserted multiple objections to the request but nonetheless responded that it “did not design, manufacture or distribute any explosion.” Plaintiff suggests, and the Court agrees, that Defendant has deliberately misread this request. Plaintiff further represents that the “U.S. Consumer Product Safety Commission sent multiple communications regarding the hazards of such fireplaces” and argues that Plaintiff is entitled to the requested communications as “[k]nowledge or notice of the same is significant.” Defendant argues that the request is overbroad to the extent it refers to “any” fireplace that has been distributed by Defendant for all time and as to time and not reasonably calculated to lead to admissible evidence. The Court sustains in part and overrules in part Defendant's objections and grants in part and denies in part Plaintiff's Motion as to this request. Defendant shall provide a supplemental response to this request and shall produce those documents currently in its possession, custody or control for the period of January 1, 2017 to July 10, 2019 that constitute or memorialize Defendant's response to communications regarding explosions relative to fireplaces designed, manufactured, or distributed by Defendant which communications were from (i) the U.S. Consumer Product Safety Commission; (ii) other governmental/regulatory authorities; (iii) consumers to whom Defendant sold fireplaces; and (iv) other entities in the design/manufacture/distribution channel of such fireplaces. Request No. 87 This request calls for Defendant to produce any and all documents/tangible things/electronically stored information that reflect and/or evidence what other portable fireplace manufacturers provide for safety, if Defendant is aware, to prevent the foreseeable dangers of an explosion. Defendant objected to this request on multiple bases, but in connection with Plaintiff's Motion, essentially asserts that it is not a manufacturer of tabletop fireplaces, that this request therefore calls for information not within Defendant's personal knowledge and not reasonably calculated to lead to admissible evidence, and that it is overbroad so as to be unduly burdensome and oppressive, calling for Defendant to take actions/make efforts that are not required. Plaintiff asserts that this request is “narrow” and seeks the safety precautions taken by fireplace manufacturers to make their fireplaces safe/safer, that Defendant's knowledge and notice of what other manufacturers do or do not do to enhance the safety of the fireplaces to consumers is relevant as to why Defendant decided to sell the subject fireplace when there were safer ones. Defendant's objections are sustained in part and overruled in part and Plaintiff's Motion is granted in part and denied in part as to this request. Defendant shall provide a supplemental response to this request and shall produce documents currently in its possession, custody or control sufficient to reflect Defendant's knowledge during the period of January 1, 2017 to July 10, 2019, of what safeguards to avoid explosions were being employed by portable fireplace manufacturers (other than the supplier of portable fireplaces that Defendant itself sold during such period). To the extent Defendant then had no such knowledge or does not have possession, custody or control of any documents that reflect such knowledge, Defendant shall provide a supplemental response so stating. Request No. 104 This request calls for Defendant to produce any and all documents/tangible things/electronically stored information that evidence the referral fee Amazon took for the sale of the Fireplace. Defendant objected to this request on multiple bases, but in connection with Plaintiff's Motion asserts that Amazon already provided the requested information to Plaintiff (at Batestamp AMZ_BANDLOW_00000515), and accordingly, that no further response should be required because such document is equally available to Plaintiff. Defendant nonetheless indicates that it is willing to provide a supplemental response referring to Amazon's prior production if necessary. Plaintiff does not address Defendant's assertion that Amazon already produced a document sufficient to provide the requested information. It presumably is possible that Defendant's records may reflect something different than Amazon's records, and Plaintiff is entitled to test the veracity of the information supplied by Amazon by obtaining the requested information from Defendant. Having said that, there would be no real utility in requiring Defendant to produce documents/provide a substantive response if it agrees with the substance of the information already supplied by Amazon. Accordingly, the Court grants in part and denies in part Plaintiff's Motion as to this request. To the extent Defendant agrees with/affirms that the responsive information supplied by Amazon on the document Batestamped AMZ_BANDLOW_00000515 is correct, it shall provide a supplemental response so indicating. To the extent Defendant disagrees with/does not view the responsive information supplied by Amazon on such document to be accurate, Defendant shall provide a supplemental response so indicating and shall produce documents sufficient to reflect the referral fee Amazon took for the sale of the Fireplace. *9 IT IS SO ORDERED. Footnotes [1] The parties filed no other documents in connection with Plaintiff's Motion. [2] The record does not reflect whether Defendant's responses were made before or after the removal of this action. Accordingly, it is unclear whether the Federal Rules of Civil Procedure (e.g., the requirements of Fed. R. Civ. P. 34) governed such responses when made. See Fed. R. Civ. P. 81(c)(1); Taylor v. Bailey Tool & Mfg. Co., 744 F3d 944, 946 (5th Cir. 2014) (Federal Rules of Civil Procedure apply only after removal; they do not provide for retroactive application to the procedural aspects of a case that occurred in state court before removal) (citations omitted). [3] Pursuant to 28 U.S.C. § 1450, all orders and other proceedings had in a removed action prior to its removal shall remain in full force and effect until dissolved or modified by the district court. 28 U.S.C. § 1450; Jenkins v. Commonwealth Land Title Ins. Co., 95 F.3d 791, 795 (9th Cir. 1996) (longstanding principle that after removal, federal court takes case up where State court left it off; when case removed, federal court takes it as though everything done in state court had in fact been done in federal court) (citations, internal quotation marks and brackets omitted). [4] Courts have broad discretion to determine whether a party's failure to raise timely objections to discovery should be excused for “good cause.” See Blumenthal v. Drudge, 186 F.R.D. 236, 240 (D.D.C.1999). In exercising such discretion, courts consider several relevant factors, including: (1) the length of the delay in responding; (2) the reason for the delay; (3) dilatory conduct or bad faith by the responding party; (4) prejudice to the party seeking the disclosure; (5) the nature of the request (i.e., whether the discovery requested was overly burdensome or otherwise improper); and (6) the harshness of imposing the waiver. Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005). [5] Unless otherwise indicated (e.g., by the Court's narrowing of a request to which an overbreadth objection was originally asserted but not argued in Plaintiff's Motion), Defendant's failure to defend originally asserted objections leads the Court to conclude that such objections are without merit and the Court alternatively overrules them on that basis.