Tomas Leszczynski v. Kitchen Cube LLC, et al Case No.: 8:23-01698 MEMF (ADSx) United States District Court, C.D. California Filed August 26, 2024 Counsel Tomas Leszczynski, Santa Ana, CA, Pro Se. Randall S. Leff, Elliot Zhongming Chen, Ervin Cohen and Jessup LLP, Beverly Hills, CA, Marc E. Hankin, Hankin Patent Law APC, Los Angeles, CA, Timothy A. Duffy, Pro Hac Vice, Law Office of Timothy A. Duffy PC, Lake Forest, IL, Troy B. Krich, Gallagher Krich APC, San Diego, CA, for Kitchen Cube LLC, Tyler Ruble. Troy B. Krich, Gallagher Krich APC, San Diego, CA, Marc E. Hankin, Hankin Patent Law APC, Los Angeles, CA, Timothy A. Duffy, Pro Hac Vice, Law Office of Timothy A. Duffy PC, Lake Forest, IL, for Timothy A. Duffy, Altamatic LLC, Insider Goods LLC, Dylan Spencer. Troy B. Krich, Gallagher Krich APC, San Diego, CA, for Randall Toltz. Spaeth, Autumn D., United States Magistrate Judge Proceedings: (IN CHAMBERS) ORDER DENYING MOTIONS TO COMPEL DISCOVERY RESPONSES (DKT. NOS. 106, 107) I. INTRODUCTION *1 Before the Court are two Motions to Compel Discovery (the “Motions”) filed by Plaintiff Tomas Leszczynski (“Plaintiff”) against Defendant Kitchen Cube LLC and Defendant Tyler Ruble on July 15, 2024. (Dkt. No. 106 (“KC Motion”); Dkt. No. 107 (“TR Motion”).) The Motions are nearly identical. In both, Plaintiff asks the Court to find Defendants engaged in spoliation and to order Defendant to provide any remaining documents responsive to four Requests for Production (the “RFPs”).[1] (Dkt. No. 106-1 at 56, 59; Dkt. No. 107-1 at 94, 98.) The Court finds the Motions suitable for decision without hearings. For the reasons discussed below, the Motions are DENIED. II. RELEVANT BACKGROUND This case involves claims for breach of contract and false advertising and misrepresentation in connection with a measuring cube (the “cube”) that Plaintiff alleges he designed before Defendants later manufactured and sold copies.[2] At issue in the KC Motion are Plaintiff's RFP Nos. 9 and 13 to Defendant Kitchen Cube. (Dkt. No. 106-1 at 54, 58.) RFP No. 9 seeks “[r]elevant email communications pertaining to the operation, management, and financial activities of Kitchen Cube LLC.” (Id. at 52.) RFP No. 13 seeks “[r]ecords of employees and independent contractors engaged by Kitchen Cube LLC, including roles, responsibilities, and compensation.” (Id. at 53.) Defendant Kitchen Cube responded to both requests stating “[it] is producing responsive documents.” (Id. at 52, 53.) In the TR Motion, Plaintiff's RFP Nos. 2 and 12 to Defendant Ruble are at issue. (Dkt. No. 107-1 at 92, 96.) RFP No. 2 seeks “[a]ll personal emails, letters, and other communications regarding your role, decisions, and activities in the operation and management of Kitchen Cube LLC.” (Id. at 83.) In response, Defendant Ruble stated: “Kitchen Cube is producing responsive documents related to its affiliate program. To the extent this request seeks additional documents, Ruble objects on the grounds it is unreasonable and unduly burdensome.” (Id.) RFP No. 12 seeks “[d]ocuments personally related to you about the manufacturing process of products sold by Kitchen Cube LLC, including personal communications with suppliers and manufacturers.” (Id. at 87.) In response, Defendant Ruble stated: “Kitchen Cube is producing responsive documents sufficient to show its manufacturing and supply chains activities. To the extent this request seeks additional documents, Ruble objects on the grounds it is unreasonable and unduly burdensome.” (Id.) In both Motions, Plaintiff claims Defendants failed to produce responsive documents that they destroyed and, as a result, engaged in spoliation. Plaintiff argues that Defendants produced documents that refer to emails with designers, manufactures, and contractors containing STEP and CAD files for Defendants' cubes. (Dkt. No. 106-1 at 54–56, 58; Dkt. No. 107-1 at 93, 97.) Plaintiff identifies three documents specifically: (1) an email chain from 2019 discussing CAD and STEM files; (2) a picture of a cube dated 2019; and (3) an undated chat message in which someone named Rico Jay Beringuela sent Defendant Ruble an image of a STEP file of a cube. (Dkt. Nos. 106-2 and 107-2, Pl.'s Decls. ¶¶ 3.14–3.16, Exs. 9–11.) Plaintiff asserts that Defendants failed to produce any of the files referenced in this email, picture, and chat message, and that Defendant informed him that those records were destroyed. (Dkt. No. 106-1 at 55, 58; Dkt. No. 107-1 at 93, 97.) *2 In response, Defendants argues that Plaintiff presents no evidence that Defendant destroyed anything or that they should have been on notice to preserve these documents. Defendants testify that they have produced everything they have in response to these requests. (Dkt. No. 117, Kitchen Cube Decl. ¶¶ 2–6; Dkt. No. 118, Ruble Decl. ¶¶ 2–6.) Defendants contend the files referenced in these documents were exchanged in 2019 through its vendor's client portal, which Defendants do not have access to. (Dkt. No. 106-1 at 4, 57, 60–61; Dkt. No. 107-1 at 4, 96, 99–100.) Defendants argue further that, even if those files were destroyed, Defendants could not have engaged in spoliation. (Id.) Defendants explain that they could not have notice that documents from 2019 were potentially relevant to this litigation, which Plaintiff initiated four years later. (Id.) II. DISCUSSION The Motions must be denied. First, Plaintiff fails to demonstrate that an order compelling Defendants to produce documents is warranted. Federal Rule of Civil Procedure 34 requires production of responsive documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a). Following a reasonable investigation to locate responsive materials, a responding party must serve a written response to each request either stating that it will produce copies of the documents requested or identifying the grounds for any objection. See Fed. R. Civ. P. 34(b)(2)(B). The court cannot order a party to produce documents that do not exist. A requesting party's mere suspicion that additional documents must exist is an insufficient basis to grant a motion to compel. See, e.g., Q Indus., Inc. v. O'Reilly Auto., Inc., No. CV 22-3791 HDV (PVCx), 2023 WL 5505889, at *5 (C.D. Cal. July 28, 2023) (collecting cases). Rather, the moving party must have a colorable basis for its belief that relevant, responsive documents exist and are being improperly withheld. See id. Here, Defendants responded to the RFPs stating that they would produce responsive documents. Plaintiff's Motions largely assert general claims that Defendants have, but are not producing, responsive emails and CAD and STEM files. Such generalized discovery challenges are insufficient. See, e.g., Carter v. Dawson, 2010 WL 4483814, at *5 (E.D. Cal. Nov. 1, 2010) (assertion that party is unable to locate responsive documents does not provide a ground for granting a motion to compel “unless Plaintiff can identify a specific document that Defendants have withheld”). To be sure, Plaintiff identifies three documents that reference certain files. But Defendants have not produced those files because they no longer have them. Defendants have produced everything they have in response to these RFPs. (Dkt. No. 117, Kitchen Cube Decl. ¶¶ 2–6; Dkt. No. 118, Ruble Decl. ¶¶ 2–6.) This Court cannot order Defendants to produce documents they do not have. Second, and relatedly, Plaintiff fails to present sufficient evidence that Defendants engaged in spoliation. “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve evidence, in pending or reasonably foreseeable litigation.” RG Abrams Ins. v. L. Offs. of C.R. Abrams, 342 F.R.D. 461, 502 (C.D. Cal. 2022) (citing United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002)). “The standard of proof for spoliation in the Ninth Circuit is preponderance of the evidence.” Id. Courts employ a three-part test in determining whether sanctions based on spoliation are warranted: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the evidence was relevant to the parties' claims or defenses. See id. at 520; Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 625 (C.D. Cal. 2013). The relevance element “is an objective standard that asks not whether the party in fact reasonably foresaw litigation, but whether a reasonable party in the same factual circumstances reasonably would have foreseen litigation.” RG Abrams, 342 F.R.D. at 502–03 (internal quotation marks and citation omitted). *3 Here, Plaintiff has not shown by a preponderance of the evidence that Defendants engaged in spoliation. Plaintiff points to three documents that reference files Defendants apparently did not produce, including an email, a picture of the cube, and a chat message. The email and picture are from 2019. A reasonable party in Defendants shoes would not have foreseen that this litigation would arise four years later such that a duty to preserve the files referenced in them existed. Defendants could not have spoliated the files discussed in these documents without notice that they were potentially relevant to this litigation. See Kitsap, 314 F.3d at 1001 (“Defendants engage in spoliation of document as a matter of law only if they had some notice that the documents were potentially relevant to the litigation before they were destroyed.”). Plaintiff offers no evidence or argument to conclude otherwise. The undated chat message does not demonstrate spoliation. Plaintiff argues Defendant Ruble is discussing differences between its cube and Plaintiff's cube in reference to a file. (Dkt. No. 106-2, Pl.'s Decl. ¶ 3.16.) In the chat, however, Defendant Ruble received an image of a cube, which he discusses with the sender. This does not demonstrate that Defendants destroyed any evidence and violated their duty to preserve. Plaintiff fails to show Defendants had control over evidence he alleges they destroyed. See United States v. Int'l Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989) (“Control is defined as the legal right to obtain documents upon demand.”). Plaintiff's spoliation accusation rests on inferences and speculation, which is insufficient to warrant sanctions. See, e.g., MGA Ent., Inc. v. Harris, No. CV 20-11548 JVS (AGR), 2023 WL 2628225, at *6 (C.D. Cal. Jan. 5, 2023) (“Inferences of ‘questionable’ conduct is not enough.”); Galicia v. Nat'l R.R. Passenger Corp., No. CV 17-8020 JFW (JCx), 2018 WL 6314191, at *4 (C.D. Cal. July 20, 2018) (“The case law on spoilation is clear that the burden for showing spoilation occurred requires more than a mere suggestion or implication.”); Best Lockers, LLC v. Am. Locker Grp., Inc., No. CV 12-00403 CJC (ANx), 2013 WL 12131586, at *6 (C.D. Cal. Mar. 27, 2013) (“Best Lockers' request for highly disfavored spoliation sanctions is based upon speculative, unfounded assertions rather than specific evidence.”). Thus, the Court cannot find Defendants engaged in spoliation. III. CONCLUSION Based on the foregoing, the Motions are DENIED. IT IS SO ORDERED. Footnotes [1] Plaintiff also asks the Court to grant him leave to issue subpoenas to third parties to recover destroyed records. If Plaintiff wishes to seek third-party discovery, there are discovery tools available to him. The Court's understanding is that third-party discovery is not at issue in the present Motions. [2] The Court's recent ruling on Defendants' motion to dismiss Plaintiff's complaint provides a detailed background in the allegations in this case. (See Dkt. No. 88 at 2–3.)