Deckers Outdoor Corporation v. Last Brand, Inc.

Background

The court had previously denied Deckers’s request for a protective order blocking discovery from Google under a subpoena that Last Brand served after the fact-discovery deadline. The court had allowed the parties to submit a joint letter addressing the dispute.

Last Brand served Google LLC with a subpoena on January 23, 2025. It sought two YouTube videos, documents sufficient to show when the videos were publicly available, and Google’s testimony at a deposition. Fact discovery had closed on September 27, 2024.

The court explained that requests for further fact discovery after a deadline generally require a showing of diligence and a reason to modify the scheduling order. The court found that Last Brand should have addressed authentication and publication-date issues during fact discovery. But the court also found that Last Brand’s lack of diligence was minimal because Last Brand had produced the videos during fact discovery, and Deckers did not dispute that fact. The court concluded that preventing limited discovery to confirm facts that did not appear reasonably disputed would not serve the interests of justice.

Ruling on the Google subpoena

The court declined to prevent compliance with the subpoena to the extent it sought documents supporting the authenticity of the videos and the dates of their publication. The court also allowed any limited deposition testimony necessary to authenticate those documents.

Last Brand represented that it did not seek substantive deposition testimony and would accept a custodian certification instead of a deposition. The court therefore ordered that Last Brand could not question Google at the deposition except as needed to confirm the authenticity of documents produced.

The court stated that its ruling rested on the assumption that Last Brand sought only evidentiary support for facts not reasonably subject to dispute. If Google’s response left a basis to dispute the videos’ authenticity or publication dates, the order remained without prejudice to Deckers arguing that it was prejudiced by the subpoena’s timing.

Deckers’s newly disclosed documents

Deckers had first disclosed another set of documents together with an expert report. The parties had not sufficiently met and conferred about Last Brand’s objection before filing the joint letter.

The court indicated that a request to strike portions of an expert report or exclude attached documents should ordinarily be presented first to the presiding judge. The court noted that the issue could overlap with a motion concerning the reliability of expert testimony or a motion for summary judgment. Depending on the circumstances, the dispute might instead be appropriate for the judge handling discovery referrals. The court did not rule on whether the documents should be struck or excluded and stated that it would consider the issue if the presiding judge specifically referred it.