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  • Writer's pictureShelly Albaum

Discovery Dispute Continued

I blogged here that ChromaDex had moved to compel production in the CD Cal lawsuit, and I posted the parties' joint stipulation.

I predicted that Elysium would not be able to entirely resist Discovery on these issues, but conceded that there was a fair question about the breadth of ChromaDex's requests.

I did NOT share with you that ChromaDex subsequently filed some additional argument explaining why its requests were not over-broad, because we have had bigger fish to fry, and there are only so many hours in the day (although I note that in its additional argument Cooley used the word "outrageous" to describe one of Elysium's arguments. I had used the phrase, "jaw-droppingly specious" to describe that same argument. Close enough.) I recommend this document; it's good reading. I sometimes get the sense that Cooley is the school principal dressing down a very mischievous student.

However, today we have Magistrate Judge* Douglas McCormick's minute order on the motion, in which His Honor finds that the parties are talking past each other and directs them to get their act together. Anyone familiar with this litigation will completely understand what His Honor is talking about.

Here is the entire order:

Plaintiff and Counter-Defendant ChromaDex, Inc. moves for an order compelling Defendant and Counter-Claimant Elysium Health, Inc. to produce documents responsive to 16 requests for production of documents.

Having reviewed the parties’ briefing, the Court has some concern about the adequacy of the parties’ good faith effort “to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible.” The declarations of counsel (Messrs. Cieslak and Powell) have a “ships-passing-in-the-night” flavor that heighten this concern. Most notably, neither the briefing nor the declarations describe on a request-by-request basis how each side proposed to resolve the relevance and proportionality issues that are the primary areas of dispute, as required by the Local Rules. See L.R. 37-2.1 (“When a party states its contentions with respect to a particular issue, such party shall also state how it proposed to resolve the dispute over that issue at the conference of counsel.”).

These concerns will cause the Court to conduct the hearing on ChromaDex’s motion as follows:

The hearing shall begin with a discovery conference between counsel for the purpose of meeting and conferring under the Court’s auspices. During that conference, the parties will be directed to discuss a possible compromise regarding each of the document requests at issue in an effort to complete a good-faith effort to eliminate the necessity for a hearing on the issues presented by the motion or at least narrow the disputes as much as possible. The parties may confer in advance of the hearing date (and are encouraged to do so). To the extent the parties wish to postpone the discovery conference to allow additional time to meet-and-confer in advance of the hearing date, the parties should contact this Court’s Courtroom Deputy Clerk to make such arrangements.

To the extent the parties are able to reach one or more stipulations that resolve some or all of the remaining issues presented by the motion at or before the discovery conference, the Court will permit them to state their stipulation(s) on the record and order compliance therewith.

If, however, after meeting and conferring further to the Court’s satisfaction, the parties remain unable to reach a resolution with respect to some or all of the issues presented by the motion, the Court will commence a hearing and afford the parties the opportunity to advise the Court how they each proposed to resolve their remaining disputes on a request-by-request basis at the discovery conference. The parties are advised that the Court will, in all likelihood, choose whatever proposal it deems more reasonable in light of the Federal Rules of Civil Procedure.


* A Magistrate Judge has authority delegated by the District Judge, and typically handles criminal matters and discovery disputes.

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