Lin v. Solta Medical, Inc. ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HSIN LIN, Case No. 21-cv-05062-PJH 8 Plaintiff, 9 v. DISCOVERY ORDER 10 SOLTA MEDICAL, INC., Re: Dkt. No. 79 11 Defendant. 12 13 14 Before the court is plaintiff’s administrative motion to allow new written discovery. 15 Dkt. 79. Defendant has filed an opposition to the motion. Dkt. 82. Having read the 16 parties’ submissions and carefully considered their arguments and the relevant legal 17 authority, and good cause appearing, the court hereby rules as follows. 18 BACKGROUND 19 This is a products liability action filed by California resident Hsin Lin against an 20 out-of-state corporation Solta Medical, Inc. (“Solta”). Dkt. 70 ¶¶ 1–2. The original 21 complaint included a since-dismissed co-defendant, Bausch Health Americas, Inc. 22 (“BHA”). Plaintiff alleges that she suffered injuries as a result of a skin treatment she 23 received in Taiwan that utilized a Thermage CPT device manufactured by defendant. Id. 24 ¶¶ 27–32. On January 23, 2019, plaintiff allegedly received her treatment and suffered 25 severe second-degree burns as a result. Id. 26 On December 20, 2021, plaintiff filed her first amended complaint. Dkt. 36. 27 Plaintiff asserted three products liability causes of action: (1) defective design, 1 causes of action for (4) negligence, (5) breach of express warranty, and (6) breach of 2 implied warranty. Id. at 16–20. 3 On February 2, 2022, defendants moved to dismiss plaintiff’s amended complaint 4 for lack of personal jurisdiction. Dkt. 41. On June 21, 2022, the court denied the motion 5 with respect to Solta and granted it with respect to co-defendant BHA. Dkt. 56. On 6 June 28, 2023, plaintiff filed a second amended complaint stating the same causes of 7 action. Dkt. 70. 8 Plaintiff propounded certain discovery requests on November 2, 2022, to which 9 defendant is still responding. During the course of still-ongoing discovery, the court has 10 twice extended the discovery deadline pursuant to stipulation by the parties. In 11 March 2023 the court extended the fact discovery deadline to September 1, 2023 12 (Dkt. 65), and in July 2023 the court again extended the fact discovery deadline to 13 December 1, 2023 (Dkt. 73). 14 As defendant was in the process of producing documents, plaintiff served 15 Rule 30(b)(6) deposition notices with corresponding document requests. Yet, before 16 scheduling those depositions, she took the position that she could not proceed with any 17 depositions until all documents responsive to plaintiff’s outstanding discovery requests 18 were produced in full. 19 On November 27, 2023, the parties filed a discovery letter brief. Dkt. 77. The 20 RFPs at issue in that letter primarily covered the nature and extent of Solta’s prior 21 knowledge of the potential of the Thermage CPT and similar predecessor models of the 22 device to cause burn injuries. In ruling on the parties’ joint discovery letter, the court held 23 that “the discovery requests should be limited to materials concerning the model or 24 generation of device at issue in the complaint—not any device with the Thermage name 25 on it.” Dkt. 80 at 4. Accordingly, the court advised that “the search [of defendant’s 26 internal communications] should be limited to the model or generation of device at issue 27 in the complaint, and need not include other products sold by Solta.” Id. at 5. 1 cutoff and dispositive motions dates. Dkt. 78. The stipulation did not permit any party to 2 issue new fact discovery requests; rather, it extended the deadline to conduct depositions 3 and respond to already-issued discovery. The court granted that stipulation on 4 December 5, 2023. Dkt. 81. 5 Also on December 1, 2023 (before the court ruled on the joint discovery letter), 6 plaintiff filed the present administrative motion seeking to allow her to issue new written 7 discovery requests. Dkt. 79. Defendant opposed the motion. Dkt. 82. 8 The parties represent that defendant continues to produce documents and that the 9 parties continue to meet and confer. The parties expect defendant to continue producing 10 documents responsive to already-issued written discovery, and they anticipate 11 depositions to continue. 12 DISCUSSION 13 A. Legal Standard 14 Rule 16 of the Federal Rules of Civil Procedure gives the court discretion to modify 15 the discovery schedule for “good cause.” Fed. R. Civ. P. 16(b)(4). When evaluating a 16 request to amend the discovery schedule, “Rule 16(b)'s ‘good cause’ standard primarily 17 considers the diligence of the party seeking the amendment.” Johnson v. Mammoth 18 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The court should focus on “the 19 moving party's reasons for seeking modification. If that party was not diligent, the inquiry 20 should end.” Id. (citation omitted). 21 B. Analysis 22 Plaintiff seeks permission to propound new written discovery up to the date of the 23 amended discovery cutoff pursuant to FRCP 16(b)(4)’s good cause standard. She 24 argues that, despite her position that she refuses to take any depositions until plaintiff 25 produces all documents responsive to her initial discovery requests, she has diligently 26 pursued discovery sufficient to amend the discovery schedule because, inter alia, 27 defendant has been slow to produce responsive materials. She also argues that given 1 defendant produces before deciding whether to propound additional discovery requests. 2 Defendant argues that plaintiff has had ample time to propound additional 3 discovery requests, including the time afforded by two previous extensions to the 4 discovery schedule. Moreover, plaintiff does not even specify what new discovery she 5 would seek. 6 As an initial matter, the parties have stipulated to extend the close of fact 7 discovery for already-issued discovery requests to February 26, 2024. Dkt. 81. As the 8 schedule stands, defendant continues to produce documents responsive to already- 9 issued requests for production, and plaintiff may continue to challenge the sufficiency of 10 defendant’s responses through negotiations with defendant, joint discovery letters to the 11 court, and if necessary motions to compel. The parties have identified certain 12 outstanding disagreements concerning the scope of already-issued discovery, some of 13 which the court has ruled on (see Discovery Order, Dkt. 80), and some of which the 14 parties have referred to in their papers (e.g., whether the defined term “DOCUMENTS” 15 encompasses e-mails).1 But these are the only potential disputes or gaps that plaintiff 16 has presented to the court; she has given no indication of what types of materials or 17 topics she hopes to learn about through new discovery requests that are not already 18 covered by previously-propounded requests. 19 When evaluating a request to amend the discovery schedule, “Rule 16(b)'s ‘good 20 cause’ standard primarily considers the diligence of the party seeking the amendment.” 21 Johnson, 975 F.2d at 609. The court should focus on “the moving party's reasons for 22 seeking modification. If that party was not diligent, the inquiry should end.” Id. (citation 23 omitted). Here, plaintiff has not demonstrated diligence because she has not exhausted 24 1 Given the parties’ representations to the court to date, it seems apparent that plaintiff’s 25 defined term “DOCUMENTS” encompasses emails. Defendant has taken the position that plaintiff’s requests seeking “DOCUMENTS” do not encompass e-mails. Dkt. 82 at 4– 26 5. However, plaintiff has represented that her requests seeking “DOCUMENTS” use that defined term to encompass “correspondence, memoranda, notes . . . inter-office and 27 intra-office communications, [and] emails”. Dkt. 77 at 4 n.5. Given plaintiff’s 1 the potential scope of her already-issued discovery requests. Plaintiff has not identified 2 what type of information she would seek with new discovery requests, or why her current 3 requests do not cover those topics. Plaintiff has not even attempted to show that 4 defendant’s allegedly-delayed discovery responses have revealed new categories of 5 relevant information that she could not have pursued earlier. Rather, plaintiff simply 6 alleges that because defendant continues to produce documents, she might discover 7 new relevant categories of information. But speculating about what documents might 8 reveal does not demonstrate diligence. Moreover, plaintiff has actually delayed her 9 pursuit of discovery by postponing her deposition schedule. 10 For the foregoing reasons, plaintiff’s administration motion to modify the discovery 11 schedule is DENIED. 12 IT IS SO ORDERED. 13 Dated: December 19, 2023 14 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27