Jennifer Stark v. Shein Distribution Corporation et al Case No.: CV 22-6016 WLH (RAOx) United States District Court, C.D. California Filed May 03, 2024 Counsel Antoinette S. Waller, Woolls Peer Dollinger and Scher, Jeffrey S. Gluck, Gluck Law Firm PC, Jeffrey Miles, David A. Erikson, Erikson Law Group, Los Angeles, CA, for Jennifer Stark. Eric R. Chad, Pro Hac Vice, Marra Mancina Clay, Pro Hac Vice, Merchant and Gould, Minneapolis, MN, Morgan E. Pietz, Pietz and Shahriari LLP, Culver City, CA, Scott P. Shaw, Merchant and Gould, P.C., Beverly Hills, CA, Thomas P. Burke Jr., PlanetArt, LLC, Calabasas, CA, for Shein Distribution Corporation, et al. Oliver, Rozella A., United States Magistrate Judge Proceedings: (In Chambers) ORDER DENYING AS MOOT DEFENDANT'S MOTION TO COMPEL PLAINTIFF'S PRODUCTION OF DOCUMENTS [50]; GRANTING-IN-PART AND DENYING-IN-PART PLAINTIFF'S MOTION TO COMPEL DEPOSITION OF MARK AITKEN [51]; AND STRIKING PLAINTIFF'S MOTION TO COMPEL DEFENDANT'S DISCOVERY [56] *1 Pending before the Court are three motions to compel. The first motion to compel is brought by Defendant Shein Distribution Corporation (“Defendant”). Dkt. No. 50 (“Def. Mot.”). Defendant moves to compel Plaintiff Jennifer Stark (“Plaintiff”) to produce documents in response to requests for production (“RFPs”). Id. Plaintiff filed an opposition on April 24, 2024. Dkt. No. 53 (“Pl. Opp'n”). Defendant filed a reply on May 1, 2024. Dkt. No. 55 (“Def. Reply”). The second motion to compel is brought by Plaintiff. Dkt. No. 51 (“Pl. Mot.”). Plaintiff moves to compel the depositions of Mark Aitken and Defendant. See id. The motion is supported by a Joint Stipulation with the parties' positions, Dkt. No. 51-1, a Declaration of Antoinette Waller (“Waller Declaration”) and exhibits, Dkt. No. 51-2–52-8, a Declaration of Eric Chad (“Chad Declaration”) and exhibits, Dkt. No. 51-9–51-17, and a Declaration of Mark Aitken (“Aitken Declaration”), Dkt. No. 51-18. Defendant filed a Supplemental Memorandum on May 1, 2024. Dkt. No. 54 (“Def. Suppl. Mem.”). The Court finds these two matters suitable for decision without oral argument and VACATES the May 15, 2024 hearing noticed for both motions. See Fed. R. Civ. P. 78; L.R. 7-15. For the reasons below, Defendant's Motion is denied as moot and Plaintiff's Motion is granted-in-part and denied-in-part. On May 2, 2024, Plaintiff filed another motion to compel. Dkt. No. 56. This motion is noticed for a hearing on May 22, 2024. See id. Motions to compel with L.R. 37-2 joint stipulations must be filed at least 21 days before the noticed hearing date. L.R. 37-3. Here, the motion was filed 20 days before the May 22, 2024 hearing. Thus, it does not comply with L.R. 37-3. Moreover, the motion is untimely. District Judge Hsu's Civil Pretrial Schedule and Trial Order provides that “[a]ny motion challenging the adequacy of discovery responses must be filed, served, and calendared before the assigned Magistrate Judge sufficiently in advance of the discovery cut-off date to permit the responses to be obtained before that date if the motion is granted.” Dkt. No. 30 at 2-3. The fact discovery cut-off is May 24, 2024. See Dkt. No. 42. Even if the Court held a hearing on May 22, 2024 as noticed, there would be only two days for the Court to issue a ruling and for Defendant to comply with any order to produce documents or supplement responses. This is not sufficient time to resolve a discovery motion and order compliance. Therefore, the Court STRIKES Plaintiff's second motion to compel for violating L.R. 37-3 and for untimeliness. The May 22, 2024 hearing is vacated. I. LEGAL STANDARD Federal Rule of Civil Procedure 26(b) (“Rule 26(b)”) provides that the scope of discovery is “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 issue 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). On motion or on its own, the Court must limit the frequency or extent of discovery if it determines that the proposed discovery is outside the scope permitted by Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C). *2 “The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1).” Louisiana Pac. Corp. v. Money Market 1 Inst. Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. 2012) (citing Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995)). “[T]he party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining, and supporting its objections with competent evidence.” Id. The Court will not compel a further response when “inadequate guidance exists to determine the proper scope of a discovery request.” Sanchez Ritchie v. Energy, Case No. 10cv1513-CAB(KSC), 2015 WL 12914435, at *2 (S.D. Cal. Mar. 30, 2015) (citing Moses v. Halstead, 236 F.R.D. 667, 672 (D. Kan. 2006)). II. DEFENDANT'S MOTION TO COMPEL A. Discovery Requests at Issue RFP No. 32: Copies of ALL agreements between YOU, on the one hand, and Vans, VF Corporation, or any other affiliated entity, on the other. RFP No. 33: Copies of ALL COMMUNICATIONS RELATED TO the negotiation of any documents produced in response to Request No. 32. RFP No. 35: Copies of ALL agreements between YOU, on the one hand, and Armitron, E. Gluck Corporation, or any other affiliated entity, on the other. RFP No. 36: Copies of ALL COMMUNICATIONS RELATED TO the negotiation of any documents produced in response to Request No. 35. RFP No. 38: Copies of ALL agreements between YOU, on the one hand, and Skechers USA, Inc. or any other affiliated entity, on the other. RFP No. 39: Copies of ALL COMMUNICATIONS RELATED TO the negotiation of any documents produced in response to Request No. 38. RFP No. 41: Copies of ALL agreements between YOU, on the one hand, and Avant Arte or any other affiliated entity, on the other. RFP No. 42: Copies of ALL COMMUNICATIONS RELATED TO the negotiation of any documents produced in response to Request No. 41. RFP No. 56: ALL DOCUMENTS evidencing or discussing the licensing of intellectual property rights in commissioned works created by YOU. In response to RFP Nos. 32, 33, 35, 36, 38, 39, 41, and 42, Plaintiff responded that she would undertake a diligent search and produce all non-privileged responsive agreements or documents in her possession, custody, or control, if any (subject to protective order). Def. Mot. at 2-5. In response to RFP No. 56, Plaintiff objected that the phrases “evidencing or discussing the ownership of intellectual property” and “commissioned worked” were vague and ambiguous. Id. at 5. Subject to those objections, Plaintiff agreed to undertake a diligent search and produce all non-privileged responsive documents in her possession, custody, or control, if any. Id. B. Analysis The parties dispute whether the motion was properly brought. It appears to the Court that neither side acted in good faith in attempting to comply with the Local Rules or resolving this dispute without Court intervention. In the interest of judicial economy and because the dispute appears to be moot, the Court will proceed to the merits rather than address procedural issues. Except as to RFP No. 56, Plaintiff did not assert any objections and agreed to produce all non-privileged responsive agreements and documents after a diligent search. See Def. Mot. at 2-5. As to RFP No. 56, although Plaintiff objected to two phrases and vague and ambiguous, Plaintiff still agreed to produce responsive documents.[1] Id. at 5. Plaintiff does not stand on any objections in her briefing and represents that she has produced the documents Defendant demands. Pl. Opp'n at 1. Although Plaintiff withheld documents based on privileges or protections from disclosure, she represents that she provided a privilege log identifying those documents, and Defendant does not challenge the privilege log or those documents in its briefing. See id. at 1. Because there are no objections at issue and Plaintiff represents that she has produced the requested documents as she agreed to do in her discovery responses, there is no dispute for the Court to resolve and nothing for the Court to compel. To the extent Plaintiff has not completed production of all non-privileged responsive agreements or documents in her possession, custody, or control after a diligent search in response to RFP Nos. 32, 33, 35, 36, 38, 39, 41, 42, and 56, Plaintiff is ordered to do so by the May 24, 2024 discovery cut-off. *3 As to Defendant's request for the Court to “proactively preclude Ms. Stark from introducing at trial any communications with her actual or potential licensees that have not been produced to Shein by the time this motion is filed,” Def. Mot. at 12, the Court does not consider this to be a ripe discovery dispute. III. PLAINTIFF'S MOTION TO COMPEL A. Deposition of Mr. Aitken Plaintiff moves to compel the deposition of Mark Aitken, who verified Defendant's discovery responses and is Shein Technology LLC VP of Government Relations. Joint Stip. at 2-3. Defendant objects to the deposition of Mr. Aitken in his personal capacity because he is a high-level employee of a third-party non-defendant and has no personal knowledge. Id. at 4-5. Under Rule 33(b)(1)(B), interrogatories directed to an entity must be answered by “an officer or agent.” Mr. Aitken verified responses to interrogatories directed to Defendant. See Waller Decl., Ex. 1 at 24-25. Thus, Mr. Aitken should be considered an officer or agent of Defendant. Defendant's argument that Mr. Aitken is entitled to heightened protections as a non-party is not persuasive. On the other hand, Plaintiff has not shown the relevance or need of Mr. Aitken's deposition testimony in his personal capacity. Although Mr. Aitken verified Defendant's interrogatory responses, such responses do not need to be based on personal knowledge. See U.S. ex rel. O'Connell v. Chapman University, 245 F.R.D. 646, 650 (C.D. Cal. 2007) (recognizing that a business entity may answer interrogatories based on available information rather than personal knowledge). There is no indication that Mr. Aitken has any personal knowledge of the facts of the case and his deposition would more than likely be duplicative of a Rule 30(b)(6) deposition. See Aitken Decl. ¶¶ 4-5. Because the Court will order a Rule 30(b)(6) deposition, the Court will deny without prejudice Plaintiff's request to depose Mr. Aitken in his personal capacity. B. Rule 30(b)(6) Deposition Plaintiff moves to compel the Rule 30(b)(6) deposition of Defendant. Joint Stip. at 3. Plaintiff requests the deposition take place at a time and place of convenience to Plaintiff with Defendant bearing the full expenses and that Defendant pay the expenses incurred for the depositions for which Defendant did not appear. Id. Defendant responds that it agreed to produce a witness for the Rule 30(b)(6) deposition, but offered to produce the witness in Singapore because the corporate designee is located in China, which does not allow depositions for use in foreign courts. Id. at 4. Defendant explains that a Singaporean visa typically takes 4-6 weeks. Id. The parties do not dispute that a Rule 30(b)(6) deposition should take place. Rather, the dispute is over the location of the deposition. “The deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business,” subject to modification “when justice requires.” Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625, 628 (C.D. Cal. 2005). However, “[a] district court has wide discretion to establish the time and place of depositions.” Hyde & Drath v. Baker, 24 F.3d 1162, 1166 (9th Cir. 1994). In determining the location of a deposition of a corporate party, courts may consider factors including the “location of counsel for the parties,” “the number of corporate representatives a party is seeking to depose,” “the likelihood of significant discovery disputes arising” during the depositions, “whether the persons sought to be deposed often engage in travel for business purposes,” and “the equities.” Cadent, 232 F.R.D. at 629. *4 Here, Defendant admits that it is incorporated in Delaware and that it maintains a place of business in this district. See Joint Stip. at 11 n.5; Answer ¶ 2, Dkt. No. 13. Plaintiff submits Defendant's Statement of Information with the State of California, which confirms that Defendant was formed in Delaware and lists a principal office in this district. Waller Decl., Ex. 3. But Defendant contends that the deposition should take place in Singapore because its corporate designee is located in China, where depositions cannot take place, and Singapore is the location of the corporate offices of Defendant's parent entity. See Def. Suppl. Mem. at 4. The presumptive location of a corporate defendant is not where the preferred corporate designee resides or where the defendant's parent entity maintains corporate offices, but rather the principal place of business of the defendant. As to the Cadent factors, it appears that only one corporate representative is at issue, and counsel for both parties are located in this district. Defendant has not set forth any information about whether its preferred designee travels to this district for business purposes or why it would be inequitable to require it to present a corporate designee in this district.[2] The Court finds that the Cadent factors weigh in favor of the deposition taking place in this district. Defendant is ordered to produce its witness(es) for the Rule 30(b)(6) deposition at a location chosen by Plaintiff's counsel within this district. The parties are ordered to meet and confer in good faith in scheduling the deposition for a date prior to the fact discovery cut-off. IV. REQUESTS FOR SANCTIONS The Court declines to award Rule 37(a)(5) sanctions to either party. The Court finds that these disputes could have been narrowed or eliminated without formal motion practice had the parties met and conferred in good faith and utilized the undersigned's informal discovery dispute resolution procedures. V. CONCLUSION For the reasons set forth above, Defendant's Motion is denied as moot. Plaintiff's Motion is granted as to the request to compel a Rule 30(b)(6) deposition but denied without prejudice as to the request to compel Mr. Aitken's deposition. The Rule 30(b)(6) deposition of Defendant shall take place within this district by the fact discovery cut-off. IT IS SO ORDERED. Footnotes [1] Defendant refers to RFP No. 66 and Plaintiff's objection based on burden. Mot. at 11. However, Defendant does not provide the text of this RFP or the response in its opening brief and it is not listed with the other RFPs. See id. at 2-5. The Court does not consider any dispute regarding this RFP to be properly raised. [2] Although the Court will not compel Mr. Aitken's deposition in his personal capacity, the Court observes that he signed the verification from an address in the United States. See Waller Decl., Ex. 1 at 24-25. Defendant's Statement of Information with the State of California also lists three officers with addresses within this District. See Waller Decl., Ex. 3.