Case 3:18-cv-00347-CAB-MDD Document 88 Filed 06/22/18 PageID.11780 Page 1 of 6
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`NUVASIVE, INC.,
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`v.
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`ALPHATEC HOLDINGS, INC., ET
`AL.,
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` Case No.: 18-cv-0347-CAB-MDD
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`Plaintiff,
`ORDER ON JOINT MOTON FOR
`DETERMINATION OF
`DISCOVERY DISPUTE
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`[ECF NO. 60]
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`Defendant.
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`Before the Court is the Joint Motion of the parties for determination of
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`a discovery dispute filed on June 4, 2018. (ECF No. 60). This is a patent case
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`and the joint motion presents Plaintiff’s motion to compel further responses
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`to two interrogatories and eleven requests for production of documents.
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`Legal Standard
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`The Federal Rules of Civil Procedure authorize parties to obtain
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`discovery of “any nonprivileged matter that is relevant to any party’s claim or
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`defense and proportional to the needs of the case . . . .” Fed. R. Civ. P.
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`26(b)(1). “Information within the scope of discovery need not be admissible in
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`evidence to be discoverable.” Id. District courts have broad discretion to
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`Case 3:18-cv-00347-CAB-MDD Document 88 Filed 06/22/18 PageID.11781 Page 2 of 6
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`limit discovery where the discovery sought is “unreasonably cumulative or
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`duplicative, or can be obtained from some other source that is more
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`convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C).
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`An interrogatory may relate to any matter that may be inquired of
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`under Rule 26(b). Fed. R. Civ. P. 33(a)(2). The responding party must
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`answer each interrogatory by stating the appropriate objection(s) with
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`specificity or, to the extent the interrogatory is not objected to, by
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`“answer[ing] separately and fully in writing under oath.” Rule 33(b). The
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`responding party has the option in certain circumstances to answer an
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`interrogatory by specifying responsive records and making those records
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`available to the interrogating party. Rule 33(d).
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`Similarly, a party may request the production of any document within
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`the scope of Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the
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`response must either state that inspection and related activities will be
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`permitted as requested or state an objection to the request, including the
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`reasons.” Rule 34(b)(2)(B). If the responding party chooses to produce
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`responsive information, rather than allow for inspection, the production must
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`be completed no later than the time specified in the request or another
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`reasonable time specified in the response. Id. An objection must state
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`whether any responsive materials are being withheld on the basis of that
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`objection. Rule 34(b)(2)(C). An objection to part of a request must specify the
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`part and permit inspection or production of the rest. Id. The responding
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`party is responsible for all items in “the responding party’s possession,
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`custody, or control.” Rule 34(a)(1). Actual possession, custody or control is
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`not required. Rather, “[a] party may be ordered to produce a document in the
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`possession of a non-party entity if that party has a legal right to obtain the
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`document or has control over the entity who is in possession of the
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`Case 3:18-cv-00347-CAB-MDD Document 88 Filed 06/22/18 PageID.11782 Page 3 of 6
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`document.” Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995).
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`Discussion
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`A.
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`Interrogatories
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`Interrogatory No. 4
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`Plaintiff requests that Defendants identify each person or entity hired,
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`contracted with, attempted to hire, or attempted to contract with in
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`connection with the development, manufacture, marketing or sale of the
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`accused products. Defendants’ first objection is that this is a compound
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`interrogatory. The Court disagrees. This objection is overruled. Defendants’
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`relevance objection, however, appears well-founded. Plaintiff asserts that
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`this information is relevant to Defendants’ decisions regarding the ultimate
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`design and operation of the accused products and its intentions regarding the
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`scope of its sales of the products. Also, Plaintiff asserts that this information
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`is relevant to the issue of willful infringement. The Court disagrees.
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`Defendants’ objection for relevance is SUSTAINED.
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`Interrogatory No. 5
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`Plaintiff requests that Defendants describe in detail all of its actions to
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`“complete [its] lateral solution.” Plaintiff asserts that Defendants’ “lateral
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`solution” is to copycat Plaintiff’s products and capitalize on the goodwill of
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`former employees of Plaintiff. Defendants object and assert that there is no
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`allegation that the products that may be part of the lateral solution involve
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`any accused products or technology. The Court agrees that Plaintiff has not
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`alleged that the lateral solution encompasses the accused products.
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`Defendants’ objection for relevance is SUSTAINED.
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`B. Requests for Production (“RFP”)
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`RFP Nos. 7-8 and 25
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`There is no dispute presented other than the timing of the production of
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`Case 3:18-cv-00347-CAB-MDD Document 88 Filed 06/22/18 PageID.11783 Page 4 of 6
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`responsive documents by Defendants. Rule 34(b)(2)(A), Fed. R. Civ. P.,
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`requires the responding party to respond to an RFP within 30 days of being
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`served. Rule 34(b)(2)(B) requires the responding party to produce responsive
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`documents within the time specified in the request “or another reasonable
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`time specified in the response.” Here, Defendants’ response is deficient.
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`Although they have agreed to produce responsive documents, they have not
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`specified a reasonable time within which production will be made and
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`completed. This deficiency must be remedied.
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`RFP No. 28
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`The dispute here relates to a portion of the RFP. Defendants object to
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`the portion of the RFP that requires production of documents concerning
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`Defendants’ decision to hire or contract with personnel of Plaintiff involved in
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`the development, manufacture or sale of XLIF. As with Interrogatory No. 4,
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`Defendants’ objection for relevance to this portion of the RFP is
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`SUSTAINED. But, as with RFPs Nos. 7-8 and 25, Defendants must provide
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`a reasonable date by which otherwise responsive documents will be produced.
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`RFP No. 34
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`Plaintiff requests all documents regarding Defendants’ communications
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`with Patrick Miles prior to his employment with Defendants. Mr. Miles
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`allegedly is an inventor of certain of the accused products. Defendants have
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`offered to produce all communications with Mr. Miles regarding the accused
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`products prior to his employment. Plaintiff wants all communications.
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`Defendants offer is reasonable. Plaintiff has not convinced the Court that all
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`communications with Mr. Miles are relevant. Defendants’ objection is
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`SUSTAINED IN PART – Defendants, as offered, must produce all
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`communications with Mr. Miles prior to his employment that concern the
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`accused products.
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`Case 3:18-cv-00347-CAB-MDD Document 88 Filed 06/22/18 PageID.11784 Page 5 of 6
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`RFP Nos. 35-38
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`These RFPs request the production of all documents regarding
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`communications with certain former employees of Plaintiff (RFP 35),
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`surgeons (RFP 36), distributors or sales representatives (RFP 37), and
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`surgeons who perform XLIF, any current employee of Plaintiff and any
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`current or former distributor of XLIF (RFP 38). Defendants object for
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`relevance. As with Interrogatory No. 4 and RFP No., 28, the Court is not
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`convinced that this information is relevant. Defendants’ objection for
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`relevance is SUSTAINED.
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`RFP No. 39
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`Plaintiff requests all documents regarding Defendants’ decision to
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`acquire neuromonitoring technology, instruments and/or capabilities. There
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`is no connection to any claim of patent infringement. Defendants’ objections
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`for relevance and overbreadth are SUSTAINED.
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`RFP No. 40
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`Plaintiff requests all documents concerning Defendants’
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`communications with SafeOp Surgical, Inc. There is no connection to any
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`claim of patent infringement. Defendants’ objections for relevance and
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`overbreadth are SUSTAINED.
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`Case 3:18-cv-00347-CAB-MDD Document 88 Filed 06/22/18 PageID.11785 Page 6 of 6
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`As provided above, Defendants’ objections to Interrogatories 4 and 5 are
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`Conclusion
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`SUSTAINED. Regarding RFPs 7, 8, 25 and 28, Defendants must produce the
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`documents that they have agreed to produce within 14 days of this Order,
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`absent a contrary agreement of the parties or further Order of the Court.
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`Defendants’ partial objection to RFP 28 is SUSTAINED. Defendants’
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`objections to RFPs 35-40 are SUSTAINED.
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`Dated: June 22, 2018
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