ANDRE P. MARSHALL, M.D. INC., Plaintiff, v. SQULPT MANAGEMENT, LLC et al., Defendants Case No. 2:24-cv-01784-SB-AS United States District Court, C.D. California Filed April 03, 2025 Blumenfeld Jr., Stanley, United States District Judge ORDER GRANTING IN PART PLAINTIFF'S EX PARTE APPLICATION [DKT. NO. 110] *1 In its summary judgment briefing, Plaintiff Andre P. Marshall, M.D. Inc. (APM) requested that the Court defer ruling on Defendants' motion for summary judgment on its false advertisement claims, arguing that Defendants had redacted and withheld altered “before” and “after” advertisements of their patients. On February 3, 2025, the Court granted the Rule 56(d) request and allowed APM to obtain specific discovery related to its false advertising claims, ordering as follows: (1) Defendants shall identify, in an interrogatory response, all “before” and “after” BBL advertisements published within the three-year period preceding the filing of APM's complaint that contain altered photographs; and (2) for any such advertisements, Defendants shall produce the original and altered photographs in native format. The interrogatory response and document production are due by February 28, 2025. Dkt. No. 95 at 5–6. In response to the Court's order, Defendants produced one photograph and stated in its interrogatory response that they “did not publish any ‘BBL’ advertisements containing material alterations to patients' ‘before’ and ‘after photographs.” Dkt. No. 99-11 at 5 of 9 (emphasis added). In an order dated March 12, 2025, the Court found that Defendants had improperly narrowed the scope of its order by making their own determinations of what constituted a “material” alteration and directed them to fully comply with the February 3 order: Defendants are ordered to fully comply with the Court's February 3 order, including by providing a further (compliant) interrogatory response and producing all original and altered photographs from the specified time period in their native format. In responding, Defendants are cautioned that they are not permitted to make any judgments about the material nature of the alterations. The only exception to the order is for an altered photograph that “merely redacts personal identification information.” Dkt. No. 103 at 2–3. APM has now filed another ex parte application, arguing that Defendants have failed to comply with the Court's order by producing over 86,000 photographs “in a disorderly manner . . in no decipherable order or relevance to the before-and-after patient photographs at issue.” Dkt. No. 110 at 2–3. In addition, Squlpt Management, LLC's (SML) interrogatory response does not identify any advertisements or provide a way for APM to discern which photographs in the production correspond to which advertisements. The response merely states that SML “is producing all native photos in its possession, custody and control, which photographs may form the basis for the images published by SML during the relevant time period.” Dkt. No. 110-14 at 8 of 9. APM requests that the Court: (1) hold Defendants in civil contempt for violating the Court's order; (2) impose terminating sanctions; (3) order Defendants to immediately comply with the order and produce responsive documents “clearly organized by patient and clearly identified by Bates-stamp numbers”; (4) impose coercive monetary sanctions; (5) order Defendants to retain a forensic IT expert to produce all responsive photographs in native format; (6) extend the summary judgment briefing deadlines; and (7) award APM attorney's fees and costs incurred in filing this application. Dkt. No. 110 at i–ii. *2 In response, SML, Squlpt Body Shaping, Inc., and Daniel Suissa M.D. state that they have “produced everything” and had no obligation to organize the photographs in any particular manner. Dkt. No. 114 at 1, 5, 6. Defendant Ryan Spivak also opposes, representing that he has not had access to any of SML's systems since September 2024 and does not have any native photographs in his possession. Dkt. No. 115-2. As an initial matter, the ex parte application is denied in its entirety as to Spivak, as he has provided sworn declaration testimony that he does not have access to any of the photographs at issue.[1] Id. The other Defendants, however, have yet again failed to comply with the Court's order. First, Defendants have taken an overbroad approach to their production, producing “all patient photos ... that might possibly form the basis for any marketing publication.” Dkt. No. 114 at 5. The Court, however, ordered Defendants to identify all “before” and “after” advertisements with altered photographs and to produce the original and altered photographs associated with those advertisements—not any and all photographs that “might possibly form the basis” for an advertisement. The Court's prior warning that Defendants were not permitted to narrow the scope of the order to include what they deemed to be “material” alterations did not authorize them to expand the scope of the order so that they could produce an overly broad, disorganized, and indecipherable data dump. Further compounding this abuse, Defendants failed to comply with the first part of the Court's February 3 order, requiring them to “identify, in an interrogatory response, all ‘before’ and ‘after’ BBL advertisements published within the three-year period preceding the filing of APM's complaint that contain altered photographs.” Dkt. No. 95 at 5–6. Defendants' interrogatory response does not identify any advertisements and merely states that SML “is producing all native photos [that] may form the basis for the images published by SML during the relevant time period.” Dkt. No. 110-12 at 9 of 10. The practical effect of Defendants' noncompliant interrogatory response and overbroad, disorganized production is to force APM to wade through tens of thousands of documents to try to find potentially relevant images. By May 2, 2025, Defendants are ordered to provide a compliant interrogatory response that identifies all “before” and “after” BBL advertisements, published within the specified time period, that contain altered photographs. For each altered published advertisement, Defendants shall identify by Bates number in numbered order in column form: (a) the published advertisement; (b) the unaltered “before” photograph; (c) the altered “before” photograph; (d) the unaltered “after” photograph; and (e) the altered “after” photograph.[2] Defendants shall reproduce these images to APM by May 2, 2025 in the order presented in the interrogatory response. *3 The Court has now had to intervene in this discovery dispute on two occasions. Finding Defendants (except Spivak) to have violated the February 3 and March 12 orders, Defendants and their counsel are ordered to pay APM for the fees incurred in bringing this ex parte application and any subsequent dispute over the reasonable amount of those fees. Fed. R. Civ. P. 37(b). The parties shall meet and confer promptly and attempt to agree on the amount of attorney's fees. If they are unable to agree, the parties shall submit a joint filing setting forth each dispute and the parties' respective positions by May 9. This is a partial sanction—that is, the Court is considering imposing further authorized sanctions, including striking pleadings and contempt. To that end, the parties shall file a joint status report on the status of production on April 21, 2025. Defendants are warned that any further failure to fully comply by the deadline will result in escalating sanctions that take into account the multiple violations. In light of Defendants' new interrogatory response and production deadline, the Court continues the summary judgment deadlines. The hearing is continued to June 27, 2025. By May 23, the parties shall meet and confer to thoroughly discuss all arguments they intend to raise and disclose any new evidence they intend to use, and by May 30, the parties shall file a supplemental joint JAF and joint JAE. The parties shall file simultaneous supplemental briefs, limited to 10 pages each, by June 6. The parties may file supplemental replies, limited to 5 pages, by June 13. The remaining case management deadlines in the Court's February 3 order are extended as follows: Trial (Mon., 8:30 a.m.) Pretrial Conference (Fri., 9:30 a.m.) Settlement Conference Deadline 1. Mag. J. ☒ 2. Panel 3. Private Post-Settlement Status Conf. (Fri., 8:30 a.m.): Joint Status Report Due (7 days before by 9:00 a.m.): Trial Filings (First Set) Deadline Trial Filings (Second Set) Deadline Prior Date June 30, 2025 June 20, 2025 May 9, 2025 May 23, 2025 May 16, 2025 May 23, 2025 June 6, 2025 Amended Date September 8, 2025 August 29, 2025 July 11, 2025 July 25, 2025 July 18, 2025 August 1, 2025 August 15, 2025 Footnotes [1] Any further reference to “Defendants” in this order does not include Spivak. [2] If Defendants were acting in good faith, the Court would not need to provide this level of detailed direction, because the meaning and intent of the discovery order is clear. Defendants shall produce the interrogatory response in the following format: Published advertisement with altered photographs SQPT001 SQPT006 Unaltered “before” photograph SQPT002 N/A* Altered “before” photograph SQPT003 N/A Unaltered “after” photograph SQPT004 SQPT007 Altered “after” photograph SQPT005 SQPT008 * If there are no photographs applicable to a particular column (e.g., if the “before” image in the published advertisement was not altered), Defendants shall so indicate by stating “N/A” in the appropriate column.