Judge Donald F. Gaffney, Case Asics America Corporation v. Shoebacca Ltd 2022-07-27 Tentative Ruling

Judge: Donald F. Gaffney, Case: Asics America Corporation v. Shoebacca Ltd, Date: 2022-07-27 Tentative Ruling

TENTATIVE RULING:

Plaintiff ASICS America Corporation moves to compel defendant Shoebacca, Ltd. to provide further responses to Plaintiff’s Second Set of Requests for Production, Nos. 17 to 107. For the reasons set forth below, Plaintiff ASICS America Corporation’s Motion to Compel is GRANTED in part and DENIED in part.

The Motion to Compel is GRANTED as to Nos. 36, 50-55, 62, 63, 73, 74, 75, 76 and 96 to 107.

The Motion to Compel is DENIED as to Request Nos. 41, 43, 45, 47, 48, 49 and 82-93.

For Request Nos. 17-35, 37-40, 42, 44, 46, 50-69, 71-72, and 77-81, the Requests are moot, because these have been resolved. (See ROA 309, Reply Appendix.)

Within thirty (30) days of notice of this ruling, Defendant Shoebacca shall serve responses to Request for Production Nos. 36, 50-55, 62, 63, 73, 74, 75, 76 and 96 to 107.

For Request Nos. 41, 43, and 45, Defendant Shoebacca shall produce a privilege log within thirty (30) days of notice of this ruling. A party asserting privilege must, in its response, “provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Civ. Proc. Code § 2031.240(c)(1).)

Good Cause: Code Civ. Proc., § 2031.310 (b) (1) requires that “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.” “[A] party who seeks to compel production must show “good cause” for the request . . .but where, as here, there is no privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) “Once good cause was shown, the burden shifted to [responding party] to justify his objection.” (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

Relevancy: A party may obtain discovery “regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Civ. Proc. Code § 2017.010.) Information is “relevant” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Lopez v. Watchtower Bible & Tract Society of N.Y., Inc. (2016) 246 Cal. App. 4th 566, 591.) ASICS has shown that the majority of the requests for production are relevant and that there was good cause for production.

For Request Nos. 36, 73 & 74, Shoebacca offered no opposition to these requests. Request No. 36 requested payments made in the Texas action. Request No. 73 requested

documents from 2017 to the present sufficient to show the number of views, searches, and purchases on any social media site through which ASICS products were marketed to consumers. Request No. 74 requested documents sufficient to show any employee incentives offered relating to the sale of ASICS products from 2017 to the present. These Requests are not overbroad or unduly burdensome, and Defendant’s opposition did not address these Requests.

For Request Nos. 41, 43, and 45, Shoebacca objected based on the attorney-client privilege and/or work product. Request Nos. 41, 42 & 43, requested documents relating to negotiation of the Hash Agreement. Plaintiff failed to establish an exception to the privileges, such as waiver or the crime-fraud exception. However, Defendant must provide a privilege log. A party asserting privilege must, in its response, “provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Civ. Proc. Code § 2031.240(c)(1).)

For Request Nos. 47, 48, 49, Defendant Shoebacca objected on tax privilege. California courts have long recognized a “statutory privilege against disclosing tax returns,” (Weingarten v. Superior Court (2002) 102 Cal. App. 4th 268, 274), which applies equally to state and federal tax returns. (Webb v. Standard Oil Co. (1957) 49 Cal.2d 509, 513–14). California law recognizes only three exceptions to this privilege, which require the party seeking disclosure to show that: “(1) the circumstances indicate an intentional waiver of the privilege; (2) the gravamen of the lawsuit is inconsistent with the privilege; or (3) a public policy greater than that of the confidentiality of tax returns is involved.” (Weingarten, 102 Cal. App. 4th at 274.) Defendant Shoebacca failed to establish any of the exceptions.

For Request Nos. 82-93, Shoebacca objected on the grounds of privacy. “[I]t is well established that, under appropriate circumstances, a litigant ‘may assert the privacy rights of third parties.’” (County of Los Angeles v. Superior Court (2021) 65 Cal. App. 5th 621, 635.) Shoebacca may assert the privacy rights of its owners.

“The party asserting a privacy right must establish [1] a legally protected privacy interest, [2] an objectively reasonable expectation of privacy in the given circumstances, and [3] a threatened intrusion that is serious. . . The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) In balancing the interests of the stakeholders, Shoebacca demonstrated that the interests of its owners outweighed the interests of ASICS to obtain the information.

For Request Nos. 50-55, 62, 63, 70, 75, 76, and 96- 107, Shoebacca objected on the grounds of relevancy and/or overbreadth/undue burden. The Requests are properly drafted. “A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. . . .Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)

“The term ‘undue burden or expense’ is not defined in the statute. In common parlance, the word ‘undue’ connotes a judgment call about whether some action or result exceeds what is reasonable or fair. Such an inquiry by a factfinder would necessarily require a case-specific consideration of the factual circumstances.” (Park v. Law Offices of Tracey Buck-Walsh (2021) 73 Cal.App.5th 179, 190.) These Requests did not create an undue burden on Shoebacca.

Moving party to give notice.