INTEX RECREATION CORP. v. BESTWAY (USA), INC., ET AL Case No. CV 19-8596-JAK(Ex) United States District Court, C.D. California Filed August 07, 2024 Counsel Andrew M. McCoy, Pro Hac Vice, Joshua DeAmicis, Pro Hac Vice, Louis T. Perry, Pro Hac Vice, Matthew James Spegele, Pro Hac Vice, R. Trevor Carter, Pro Hac Vice, Reid E. Dodge, Pro Hac Vice, Faegre Drinker Biddle and Reath LLP, Indianapolis, IN, David R. Merritt, Pro Hac Vice, Faegre Drinker Biddle and Reath LLP, Minneapolis, MN, Luke E. Steffe, Pro Hac Vice, Faegre Drinker Biddle and Reath LLP, Denver, CO, Tarifa Belle Laddon, Faegre Drinker Biddle and Reath LLP, Los Angeles, CA, for Intex Recreation Corp. Ben M. Davidson, Davidson Law Group ALC, Calabasas, CA, James Cleland, Pro Hac Vice, John S. Artz, Pro Hac Vice, Sharae L. Williams, Pro Hac Vice, Dickinson Wright PLLC, Ann Arbor, MI, Michael David Saunders, Dickinson Wright PLLC, Austin, TX, Oliver F Ennis, Pro Hac Vice, Dickinson Wright PLLC, Chicago, IL, Steven A. Caloiaro, ickinson Wright PLLC, Reno, NV, for Bestway (USA), Inc., et al. Eick, Charles F., United States Magistrate Judge Proceedings: (IN CHAMBERS) *1 The Magistrate Judge has read and considered all papers filed in support of and in opposition to “Defendants' Motion to Compel Discovery,” filed July 23, 2024 (“the Motion”). The previously noticed August 16, 2024 hearing is vacated. The Magistrate Judge has taken the Motion under submission without oral argument. On October 10, 2023, Defendants filed “Defendants' Motion to Compel Plaintiff's ESI Custodians and Documents” (“the previous motion”). The previous motion sought to compel Plaintiff to identify custodians of, and to produce relevant electronically stored information (“ESI”) possessed by, Intex Industries Xiamen Co. Ltd. (“Xiamen”). Plaintiff opposed the previous motion, arguing, inter alia, that Plaintiff lacks the requisite “control” over the relevant ESI possessed by Xiamen so as to make the ESI subject to party discovery in this action. On October 30, 2023, the Magistrate Judge found that Plaintiff has the requisite “control” (Minute Order filed October 30, 2023, pp. 1-3, 7). The Magistrate Judge granted the previous motion “with respect to Intex Xiamen's custodians and Intex Xiamen's ESI” and ordered the parties to “proceed accordingly” (id., p. 7). Originally, three Xiamen-based custodians were identified: Mr. Lin, Mr. Hsu and Mr. Huang. However, as Plaintiff first learned on March 22, 2024, Mr. Lin passed away in 2016 and the ESI on his former desktop computer was lost in 2018 (see “Report and Recommendation, etc.,” filed July 30, 2024, pp. 2-3). One of the issues now presented is whether the Magistrate Judge should compel Plaintiff to identify a “replacement” Xiamen-based custodian and to produce that custodian's responsive ESI. Under the circumstances presented, and in fulfillment of the intendment of the October 30, 2023 Order, Plaintiff should be, and is now, so compelled. Plaintiff's argued distinction between identifying a “replacement” custodian and producing ESI from such a custodian is rejected as unsupported and insupportable. Also at issue in the present Motion is whether the “replacement” Xiamen-based custodian should be Mr. Ho (apparently preferred by Plaintiff) or Mr. Hou (apparently preferred by Defendants). The parties' prior agreements and the Court's prior orders appear to leave the identification of appropriate custodians up to the producing party. The Magistrate Judge does not discern any sufficient reason now to mandate an identification different than that preferred by Plaintiff, the producing party. To the extent Plaintiff has not done so already, and to the extent any responsive documents exist, Plaintiff also must produce Xiamen documents (as distinguished from ESI) responsive to Requests for Production Nos. 1, 2 and 8 (but not 18). See Fed. R. Civ. P. 26(b). Plaintiff may withhold from the production ordered herein any assertedly privileged responsive documents, provided Plaintiff identifies each such withheld document with particularity on a privilege log. To the extent the Motion is granted, Plaintiff must fully comply with this Order on or before September 12, 2024. *2 Except as expressly stated herein, the Motion is denied. Defendants have failed to demonstrate sufficient cause for any of the additional relief requested in the Motion. In particular: (1) a deposition of Mr. Zee would not be proportional to the present needs of the case (Fed. R. Civ. P. 26(b)); and (2) a court order compelling responses to Defendants' informal discovery requests would be ultra vires. See, e.g., Sithon Maritime Co. v. Mansion, 1998 WL 182785, at *2 (D. Kan. Apr. 10, 1998) (“Informal requests for production lie outside the boundaries of the discovery rules.... To treat correspondence between counsel as formal requests for production under Rule 34 would create confusion and chaos in discovery”).