Gaby's Bags, LLC v. Mercari, Inc.

Background

This discovery order addressed letter briefs concerning Mercari’s requests for admission, interrogatories, and requests for production. The court noted that it had previously warned the parties not to rely on broad assertions while directing the court to review large numbers of discovery requests and responses. The court said the parties had repeated that problem.

Requests for Admission

Mercari argued that Gaby’s Bags had not answered requests for admission 1–6 and 11–19, and that Gaby’s Bags’ assertions of insufficient knowledge conflicted with its pleadings, other discovery answers, and earlier court orders.

The court reviewed the September 8, 2020 supplemental responses one by one, but limited its review to the two issues Mercari raised. Regarding request for admission 1, which asked Gaby’s Bags to admit that it agreed to a particular version of Mercari’s Terms of Service on or about January 26, 2017, the court held that Gaby’s Bags’ response asserting insufficient knowledge was an answer under Federal Rule of Civil Procedure 36(a)(4). The court also found no contradiction between that response and the statements or earlier court orders identified by Mercari. The court said the other responses were similar and did not contradict the materials Mercari cited, while noting that it was not deciding whether every response was otherwise adequate or compliant with the rules.

The court denied Mercari’s motion to compel further responses to requests for admission 1–6 and 11–19.

Interrogatories

Mercari challenged Gaby’s Bags’ assertions of attorney-client privilege and attorney work-product protection in response to interrogatories 2–5. The court explained that attorney-client privilege protects certain confidential communications between a lawyer and client, while work-product protection covers certain materials prepared for litigation.

The court rejected Mercari’s argument that the privilege log was inadequate. It relied on authority holding that litigation-related communications and work product generally do not need to be included on a privilege log when they were created after litigation began or in direct preparation for litigation. The court also rejected Mercari’s waiver arguments, finding that the communications described did not have to be logged and that Gaby’s Bags had asserted the relevant objections in its original responses. The court further found that Mercari’s brief argument that the privilege claims were legally incorrect was insufficient because it did not explain why the claims failed.

The court denied Mercari’s motion on those privilege and work-product issues.

Interrogatory 16 asked Gaby’s Bags to state the percentage of its overall sales that took place on or from Mercari. The court found the information relevant and proportional but described Gaby’s Bags’ response as difficult to understand. The response gave an approximate percentage for 2018 while stating that Gaby’s Bags could not determine the percentage for the entire period. The court ordered Gaby’s Bags to provide a complete response to interrogatory 16.

For interrogatories 20–22 and 25, Mercari sought information about claimed fees and costs, communications with third parties such as customers, and Mercari’s requests for admission. The court denied this part of the motion because it had previously sustained Gaby’s Bags’ objection that Mercari exceeded the permitted number of interrogatories, and Mercari did not seek reconsideration or address that issue in its letter brief.

Requests for Production

Mercari challenged Gaby’s Bags’ privilege log, its alleged refusal to produce documents, allegedly new objections in amended responses, and an issue concerning a protective order.

As to the privilege log, the court repeated its analysis concerning the interrogatories: although the log would be inadequate if the described communications had to be logged, the communications described did not have to be included on a privilege log. The opinion’s text then turns to the document-production issues.

The court denied Mercari’s motion concerning requests for production 1, 2, 21, 22, 24, 25, 26, 27, and 39 because Gaby’s Bags had agreed to produce at least some documents and Mercari did not explain why those agreements were inadequate. The court also denied the motion concerning requests 4 and 33 because Mercari did not address Gaby’s Bags’ statements that it had no responsive documents, apart from documents it claimed were privileged for request 4.

The court found requests for production 3, 23, 30, 31, 32, 34, 37, 38, and 41 relevant and proportional. Because Gaby’s Bags had not agreed to produce documents in response and had not provided persuasive arguments against relevance and proportionality, the court granted Mercari’s motion as to those requests and ordered Gaby’s Bags to produce nonprivileged responsive documents.

The court denied Mercari’s request concerning allegedly new objections in amended responses because Mercari did not identify which requests or objections were at issue and did not adequately explain the alleged waiver. The court stated that a protective order entered on November 11, 2020 resolved the remaining issue presented by the letter brief.

Disposition

The court concluded that Mercari’s motions to compel were granted and denied as set out in the order. The opinion was signed by Thomas S. Hixson, United States Magistrate Judge.