Legendary Foods, LLC v. Simply Good Foods USA, Inc. et al Case No. CV 24-6337-GW (KSx) United States District Court, C.D. California Filed May 20, 2025 Stevenson, Karen L., United States Magistrate Judge Proceedings: ORDER RE: DISCOVERY DISPUTE CONCERNING FORENSIC IMAGING OF PERSONAL CELL PHONE DATA [DKT. NOS. 83, 84] *1 Before the Court for resolution is the parties' letter briefing outlining a dispute concerning the proposed Cell Phone Data Preservation provision to be included in an Electronically Stored Information Order (“ESI Order”) in this action alleging misappropriation of trade secrets. At issue is Plaintiff and Counterclaim-Defendant Legendary Foods LLC's (“Legendary's”) request that the proposed ESI Order require Defendants Simply Good Foods USA, Inc. and Quest Nutrition LLC (together “SGF”) to obtain and preserve forensic images of personal cell phones purportedly used by eight individual SGF custodians for business communications, “or provide a certification that the custodian has not used his or her personal device for business communication during his or her tenure at SGF.” (Dkt. No. 84 at 1.) For the reasons outlined below, the Court GRANTS in part and DENIES in part Legendary request for reciprocal requirements for forensic imaging of certain personal cell phone information for certain key current and/or former SGF custodians. PROCEDURAL BACKGROUND Legendary commenced this action on July 26, 2024. (Dkt. No. 1.) The Complaint asserts claims against SGF for: (1) Misappropriation of Trade Secrets; (2) Unfair Competition under California Business and Professions Code § 17200 et seq. and (3) Declaratory Relief. (Id.) On September 30, 2024, Defendants-Counterclaim-Plaintiffs filed an Answer, Affirmative Defenses, and Counterclaims for: Trade Secret Misappropriation; Breach of Contract; Breach of Duty of Loyalty; Breach of the Covenant of Good Faith and Fair Dealing; Civil RICO under 18 U.S.C. § 1961 and § 1962; Violation of California Penal Code § 496; Fraudulent Concealment; Declaratory Relief; and Injunctive Relief. (Dkt. No. 12.) In addition to Legendary Foods, LLC, and Ayce Snacking Company, LLD, the named Counterclaim-Defendants include nine (9) individuals: Richie Fiene, Sach Kazarian, Kyle Kazarian, Jake Jessa, Chris Quemena, Chris Van De Polder, Robert Montano, Anthony Velenzuela, and Ron Penna. (Id.) As the parties prepare to engage in what will likely be extensive discovery involving electronically stored information (“ESI”) in this matter, they have been negotiating for some time the terms of a proposed ESI Order. Legendary insists that collection/preservation obligations for Plaintiff-Cross-Defendants and Defendants-Cross-Complainants should be reciprocal. On March 27, 2025, the Court held an informal discovery conference with the parties regarding the dispute concerning the Cell Phone Data Preservation provision in the proposed ESI Order. [Dkt. No. 86.] After hearing the statements of counsel, the Court asked for supplemental briefing, with specific information about the particular custodians and their connection (or lack thereof) to the claims and defenses at issue in the case, as well as any relevant authorities on the issue. (Id.) On March 31, 2025, the parties submitted their Supplemental Letter briefs (Dkt. Nos. 83, 84) and the matter is now under submission for decision. THE PARTIES' ARGUMENTS 1. Legendary's Arguments *2 Legendary asks the Court to impose a bilateral requirement for the forensic imaging of personal cell phones for “each document custodian,” including key current and former SGF employees, who may have relevant information in this trade secrets misappropriation lawsuit. (See Dkt. No. 84.) Legendary points to an unpublished decision from the Northern District California, J.T. v. City & Cnty of San Francisco, No. 23-CV-065234-LJC, 2024 WL 3834200 (N.D. Cal. Aug. 14, 2024), in which Judge Cisneros emphasized the distinction between the duty to preserve and the duty to produce, but nonetheless found it necessary to ensure the preservation of certain cell phone data by requiring the individual cell phones to be “maintained by counsel ‘during the duration of this litigation, ’ ” or alternatively, that a vendor could be engaged to “create a complete backup images of the device.” (Id.) Legendary argues that J. Cisnero's approach should be adopted here, and requests that the Court order imaging of key SGF employee devices “that were used for business purposes, so that data on those devices is not ‘inadvertently lost,’ and so that appropriate searches can be run on the data to locate responsive communications.” (Id.) To that end, Legendary provides an Appendix A that lists eight individual custodians who may have information relevant to the litigation on their personal cell phones. (Dkt. No. 84 at 4-5 [Appendix A].) Moreover, Legendary, in a footnote, “reserve[s] the right to expand this list of custodians for cell phone imaging if discovery reveals that other SGF custodians had involvement in the events at issue in the litigation such that preservation and searching of their cell phone data is warranted.” (Dkt. No. 84 at 1 n.2.) According to Legendary, the forensic imaging of the personal cell phone for each of these custodians is necessary because SGF identified these persons in SGF's Rule 26 Initial Disclosures. (Dkt. No. 84 at 4 [Appendix A].) Specifically, Legendary requests forensic imaging of the personal cell phones for the following custodians: Jeremy Ivie: Chief Product Officer at Quest; alleged to have been “central in SGIF's misappropriat[ion] of Legendary's trade secrets”; alleged to have received “fraudulent statements by Counter-Defendant Z. Kazarian”; and “a key player in the 2020 pastry investigation that is at the center of SGF's claims against Z. Kazarian”; Kendra Sobolesky: Research and Development Senior Food Scientist/Product Development Manager at Quest; alleged to be “part of a small group of Quest employees that had knowledge and communication with a co-manufacturer involved in a product at the center of this case which SGF accused of being misappropriated”; Tim Kraft: Not identified in SGF's Rule 26 disclosures. SGF's counterclaims allege, “Mr. Kraft is part of a small group of ‘Quest management,’ ” who had communications with Z. Kazarian relevant to SGF's fraud claim against Z. Kazarian. Kraft is believed to be currently employed by SGF and serves as General Counsel and Corporate Secretary.”; Neil Eckstein: Not identified in SGF's Rule 26 disclosures, but also identified as “part of a small group of ‘Quest management,’ ” who had communications with Z. Kazarian relevant to SGF's fraud claim against Z. Kazarian. Eckstein is believed to be “currently employed by SGF and holds the title of Vice President, Legal Compliance.”; Geoff Tanner: Not identified in SGF's Rule 26 disclosures. Believed to hold position of CEO of SGF and, during Tanner's tenure, SGF is alleged to have “conducted an investigation into purported fraud by Counter-Defendant Z. Kazarian in 2023.” Legendary alleged “SGF initiated a series of anticompetitive demand letters to Legendary employees in February 2024, also during Mr. Tanner's tenure as CEO.”; *3 Stuart Heflin: Identified in SGF's Rule 26 Disclosures as “General Manager and Senior Vice President Marketing at Quest.” Believed to be “knowledgeable regarding the departures of Counter-Defendants from their employment at SGF.”; Emily Johnston: Identified in SGF's Rule 26 Disclosures as “Vice President of Nutrition Brand Marketing.” Believed to be “knowledgeable regarding the departures of Counter-Defendants from SGF.”; David Ritterbush: Identified in SGF's Rule 26 Disclosures. A member of the GF's Board of Directors and former CEO of Quest. Identified as potentially having knowledge regarding the founding of Quest; the confidential, proprietary and trade secret information that is the subject of SGGF's counterclaims; the measures SGF have taken to safeguard their confidential, proprietary, and trade secret information and maintain its secrecy; the SPA; and the Quest Agreement.” (Dkt. No. 84 at 4-5 [Appendix A].) 2. SGF's Opposition Defendant-Counter-Plaintiff SGF opposes Legendary's request for a bilateral provision in the ESI Order requiring forensic imaging of personal cell phone data for multiple custodians. (Dkt. No. 83 at 1.) SGF emphasizes that the demand for a bilateral imaging requirement of the personal devices, apart from those who are named parties, “would include 26 of SGF's custodians.” (Dkt. No. 83-3 at 1.)[1] SGF insists that there is little, if any, evidence that the devices of these individuals contain information relevant to the claims and defenses at issue in this lawsuit. (Id.) Thus, SGF argues that requiring forensic imaging of the individuals' personal cell phones “would be an outrageous invasion of privacy, not supported by any case law, and not proportionate to the needs of this case.” (Id.) With their letter brief, SGF provided several appendices listing various current and former SGF personnel, their roles at the company, and whether they are named in the action and/or identified in Initial Disclosures. (Id. at 6-12 [Appendices A-F].) Appendix A lists twenty-six former and current SFG employees and/or officers of SGF. (Id. at 6-8.) Appendix B to SGF's letter brief lists seven (7) Counterclaim-Defendants; nine (9) SGF C-Suite and High-Level Executives – eight (8) of whom are still currently with the Company; and only two of whom (Tim Kraft, Chief Legal Officer/Corporate Secretary) and Neil Eckstein (Vice President, Legal & Compliance) are named in the Action. (Id. at 9-10.) Appendix C identifies members of SGF's General Counsel Office – all three of whom are named in the action. (Id. at 10.) Appendix D identifies two current and one former employee in SGF's Marketing Department; none of whom are named in the action. (Id. at 11.) Appendix E identifies three (3) current members of SGF's Research and Development Department, none of whom are named in the action. (Id.) Appendix F identifies seven (7) of SGF's former and non-party employees, including the company's Co-founder, former CEO, former head of Business Development and Lead Developer, R&D; Chief Marketing Officer, Senior Corporate Counsel; and a Food Scientist. (Id. at 11-12.) ANALYSIS I. Legal Standard: Relevance, Proportionality, and the Duty to Preserve *4 Under Federal Rule of Civil Procedure 26, a party may obtain discovery concerning any nonprivileged matter that is relevant to any party's claim or defense and is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). As amended in 2015, Rule 26(b)(1) identifies six factors to be considered when determining if the proportionality requirement has been met, namely, the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to the 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. Id. Relevant information need not be admissible to be discoverable. Id. Under Rule 37, parties or potential parties to litigation are obligated to preserve electronically stored information in anticipation of litigation. Fed. R. Civ. P. 37(e). In addition, Rule 37 outlines sanctions a court may impose if it finds that a party has been prejudiced by the loss of “electronically stored information that should have been preserved in the anticipation or conduct of litigation ... because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery[.]” Fed. R. Civ. P. 37(e); and see Oracle America Inc., v. Hewlett Packard Enterprise Co., 328 F.R.D. 543, 549 (N.D. Cal. 2018). District courts have broad discretion in controlling discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). The Court has similarly broad discretion in determining relevancy for discovery purposes. Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005) (citing Hallet, 296 F.3d at 751). In resolving discovery disputes, the Court may exercise its discretion in “determining the relevance of discovery requests, assessing oppressiveness, and weighing those facts in deciding whether discovery should be compelled.” Unilin Beheer B.V. v. NSL Trading Corp., No. CV 14-2210-BRO (SSx), 2015 WL 12698382, at *4 (C.D. Cal. Feb. 27, 2015) (citing Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 558 (D. Conn. 2006) (internal quotation marks omitted)). II. Discussion A. Merely Listing SFG Employees on Rule 26 Disclosures Does Not Eviscerate Rights of Privacy or Satisfy Rule 26's Proportionality Requirement There are few devices more ubiquitous in our lives than individual cell phones. These devices capture nearly every aspect of a person's life – from the goofy to the sublime, from financial data to cherished memories. Indeed, for many, their personal cell phone is perhaps the single most comprehensive repository for sensitive individual information – including personal contacts, photographs, passwords, boarding passes, banking applications, social media posts, biometric data, on-line purchasing information, medical histories, romantic communications, voicemails from deceased loved ones, and yes, even communications related to one's work. A litigant's or key witness's obligation to preserve potentially relevant information is undisputed. “As soon as potential claim is identified, a litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.” In re Napster, Inc., Copyright Litig., 462 F. Supp. 2d 1060, 1067 (N.D. Cal. 2006). But the duty to preserve only extends to relevant records, i.e., “information that is relevant to specific, predictable, and identifiable litigation.” Apple v. Samsung Elecs. Co., Ltd., 881 F. Supp. 2d 1132, 1137 (N.D. Cal. 2012). Thus, when it comes to forensic imaging of electronic information, as Judge Cisneros emphasized, *5 courts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature. J.T. v. City and Cty of San Francisco, 2024 WL 3834299 at *4. Here, Legendary's request is very broad. Legendary seeks an order requiring full forensic imaging of personal cell phones for multiple individuals solely on the basis of their current or former employment with SGF. But this Court shares J. Cisneros's concern that “urge[s] general caution with respect to forensic imaging in civil discovery.” Id. That caution is only further heightened when, as here, the forensic imaging at issue targets personal devices, not just company databases and/or computer files. Thus, the Court does not focus solely on potential relevance of any information that may (or may not!) reside on these individuals' personal phones. Rather, the Court also considers, as it must, proportionality, and specifically, proportionality as it relates to weighing the significant personal privacy interests for the individuals at issue. Legendary maintains that its request for imaging of “key SGF employee devices that were used for business purposes” is a reasonable step to preserve relevant data so that “appropriate searches can be run on the data to locate responsive communications.” (Dkt. No. 84 at 2.) But SGF counters that Legendary's assumption that “forsenic imaging of ten SGF executives'[2] personal cell phones” is necessary to preserve potentially relevant information is entirely speculative. (Id. at 2.) SGF argues that Legendary has “not at all demonstrated that these executives possess relevant information on their personal devices that cannot be obtained through less intrusive means to justify forensically harvesting their data.” (Id. (internal citation omitted).) The Court shares that skepticism. Counsel confirmed at an informal discovery hearing on this issue that the personal devices at issue do not belong to the employer and the individuals pay their own costs for cell service and use. Further, after reviewing the list of custodians for whom Legendary requests that the Court order SGF to obtain forensic images of their cell phones, given the titles and professional roles of these individuals, it appears that the vast majority of documents potentially relevant to the claims and defenses in this action would be in the custody of the company as part of its records rather than on the individuals' personal cell phones. The Court is, therefore, disinclined, without more, to order forensic imaging of individuals in senior corporate roles whose corporate records, including electronic files and data at SGF, are already subject to a litigation hold. For example, Jeremy Ivie is currently an SGF employee and Senior Vice President of R&D, Chief Product Technology Officer; Kendra Sobolesky is also a current SGF employee, as Product Development Manager, Senior Food Scientist; Tim Kraft, is Chief Legal Officer and Corporate Secretary; Neil Eckstein is Vice President, Legal & Compliance; and Geoff Tanner is currently SGF's President and CEO, but SGF emphasizes that Mr. Tanner did not join SFG until March 2023. (See Dkt. No. 83 at 5-6.) Stuart Heflin is a current SGF employee, Senior Vice President, General Manager; Emily Johnston, also currently at SGF, is a Director, Quest Brand Marketing; and Dave Ritterbush is a former SFG, CEO. None of these individuals are named parties in the action. (Id. at 6.) More importantly, Legendary Foods has made no showing to persuade the Court that the personal devices of corporate legal counsel or the current CEO (who was not with the company during the relevant time period) should be subject to complete forensic imaging. *6 One reason Legendary Foods maintains that the Court should order forensic imaging of the personal cell phones of the twelve SGF employees listed on Appendix A is because eleven of the twelve SGF employees listed on Appendix A are identified in SGF's Rule 26 Disclosures. (See Dkt. No. 84 at 4-5.) But the mere fact that these individuals have been identified as persons who may have relevant information is insufficient to persuade the Court that wholesale forensic imaging of their personal cell phone devices is proportionate to the needs of the case. B. Former Senior SGF Employees Who are Named Parties Must Preserve Potentially Relevant Cell Phone Information The analysis is different in the case of former SGF employees are who are named individually as Cross-Defendants. For these individuals, the Court is concerned that depending entirely upon the individuals to personally assess relevance of any work-related information on their personal devices risks the failure to preserve, or worse, potential deletion, of information relevant to the misappropriation claims at the center of this litigation. Thus, the Court concurs with Judge Cisneros's analysis that “reasonable measures” should be taken to make sure that relevant cell phone data is preserved during the course of the lawsuit. J.T. v. City and Cty of San Francisco, No. 23-cv-06524-LJC, 20024 WL 3834200, at *4 (N.D. Cal. Aug. 14, 2004). Therefore, the Court will permit forensic imaging of the personal cell phone devices of: Ronald Penna, Co-Founder, CEO/Chief Knowledge Officer; Kyle Kazarian, Manager of Commercialization & Development, R&D Director; and Zachary Kazarian, R&D Director – all formerly employed with SGF and named parties in this action. CONCLUSION AND ORDER For the reasons outlined above, Legendary's request for a bilateral Cell Phone Data Preservation provision in the parties' proposed ESI Order that would require forensic imaging of the personal cell phones of each document custodian is GRANTED in part and DENIED in part as follows: (1) The request is GRANTED to permit forensic imaging of the personal cell phone devices of: Ronald Penna, Co-Founder, CEO/Chief Knowledge Office; Kyle Kazarian, Manager of Commercialization & Development, R&D Director; and Zachary Kazarian, R&D Director – all formerly employed with SGF and named as parties in this action. Counsel for SGF will maintain custody of the imaged files. (2) Other current SGF custodians, may, as appropriate, provide a signed certification that they have not used their personal device for business communication during his or her tenure at SGF. (3) The request is DENIED in all other respects. No additional custodians may be required to provide forensic imaging of their personal cell phones absent an order of the Court upon a showing of good cause. IT IS SO ORDERED. Footnotes [1] One of the 27 custodians Legendary identifies as an imaging target is SGF's Research & Development (“R&D”) shared drive, which SGF notes “is not at issue here.” (Dkt. No. 83-3 at 1 n. 2.) [2] SGF CEO (Geoff Tanner); former CEO and current Board member (Dave Ritterbush); Chief Legal Officer (Tim Kraft); VP of Legal & Compliance (Neil Eckstein); CFO (Shaun Mara); Chief Product Technology Officer (Jeremy Ivie); Chief Strategy Officer (Alex Wittenberg); former Chief Marketing Officer (Linda Zink); General Manager/SVP (Stuard Heflin); and VP of Brand Marketing (Emily Johnston). (Dkt. No. 83 at 2.)