Valentine v. Crocs, Inc.

Background

This proposed class action concerns shoes that Crocs sells and that are made of 90% or more Croslite material. The court was handling three discovery disputes while the case remained at the class-certification stage: the timing of Crocs’s electronically stored information (ESI) production, the range of products subject to discovery, and Crocs’s responses to requests for marketing materials. The class-certification discovery cutoff was identified in the opinion as January 26, 2024, while later scheduling discussions referred to a January 24, 2024 deadline.

ESI production

The plaintiffs asked the court to require substantial completion of Crocs’s ESI production by November 17, 2023. Crocs opposed that date as unreasonable and unworkable and said it anticipated substantial completion by December 15, 2023. At the November 7 hearing, the parties confirmed that no ESI production had yet occurred, although Crocs had produced some paper documents. Crocs reported that technical problems had recently been resolved, that more than a dozen attorneys and an outside electronic-discovery vendor were working on production, and that document processing and technology-assisted review were underway.

The court ordered Crocs to begin rolling ESI production on or before November 17, 2023, and set December 8, 2023, as the deadline for substantial completion of that production. The court also established procedures for documents later claimed to be privileged or otherwise protected. Crocs must issue a clawback notice identifying the documents, provide a privilege log, and provide redacted replacement copies or a notice that an entire document is being withheld. After receiving notice, the plaintiffs and their counsel and experts must collect and return or destroy the identified materials and may not use them until further court order. The plaintiffs may challenge privilege claims through the court’s discovery procedures.

For ESI produced during class-certification discovery, the court allowed Crocs to use the highest confidentiality designation under the protective order as a default, while requiring Crocs to promptly reassess those designations after substantial completion. The parties were ordered to continue working on a schedule for depositions and to file a joint status report by December 18, 2023, describing how they planned to complete them before the discovery cutoff. If depositions created a need for follow-up discovery, lead counsel were ordered to meet promptly, and the parties could submit an agreed request for court approval of discovery after the cutoff.

Products subject to discovery

The plaintiffs argued that discovery should cover all shoes made of at least 90% Croslite that were sold during the class period, not only the 2022 models of the Crocs Classic Bae and Classic Clogs that they said they purchased. Crocs argued that the plaintiffs were trying to expand discovery beyond the allegations and that, because no class had been certified, the plaintiffs lacked standing to sue concerning other shoes.

The parties agreed that discovery at least covered variations of the purchased models when differences such as size, color, or model year were immaterial to the case. They then withdrew the dispute because a pending motion to dismiss the amended complaint could determine or substantially affect the issue. The court therefore denied the request for relief on this issue as moot.

Marketing materials and Interrogatory No. 10

The plaintiffs requested all responsive marketing materials from the class period and argued that materials displayed in Crocs retail outlets were relevant to their proposed subclasses and express-warranty allegations. Crocs said it had gathered or was gathering representative social-media, print, online, and in-store advertisements from January through May 2022 and was producing a full year of 2022 marketing materials.

The parties said the dispute over additional marketing materials was essentially resolved by the court’s ESI-production deadline and withdrew that dispute. The court nevertheless ordered Crocs to promptly complete production of the full year of marketing materials it had committed to produce.

The plaintiffs separately challenged Crocs’s response to Interrogatory No. 10, which sought information about where marketing materials appeared, including whether they were in stores or online, and the dates of their display. The court found that the requested information was relevant and not duplicative of the document requests, but also found that requiring a response for approximately 1,000 stores would not be proportional to the needs of the case. The parties withdrew this issue to allow further negotiations, and the court ordered them to file a joint status report by noon on November 13, 2023, concerning a supplemental response.

Disposition

The court stated that all three disputes were resolved through the orders in the opinion or through withdrawal by the parties. Magistrate Judge Peter H. Kang admonished the parties and their lawyers to follow the court’s professional-conduct guidelines, discovery standing order, and the relevant federal procedural rules.