Case Name: Isherwood, et al. v. Specialized Bicycle Components, Inc., et al.

Case No.: 1-13-CV-245098

There are two discovery motions before the court: (1) the motion of plaintiffs Peter Isherwood (“Isherwood”) and Tamara Jayne Bickerton (collectively “Plaintiffs”) to compel defendant Fox Factory, Inc. dba Fox Racing Shox (“Fox”) to provide further responses to special interrogatories (“SI”); and (2) Plaintiffs’ motion to compel Fox to provide further responses to requests for production of documents (“RPD”). Fox opposes both motions.

Additionally, defendants Specialized Bicycle Components, Inc. (“Specialized”) and King Cycle Group, Inc. (“King”) have filed a joint opposition to Plaintiffs’ motions in which they object to the issuance of either of the draft protective orders attached to Plaintiffs’ counsel’s declaration filed in support of the motions, which are referenced in the motions in relation to the parties’ meet and confer efforts. Plaintiffs have not asked the court to enter a protective order.

Factual Background

This is a product liability/manufacturing defect case. In 2008, Isherwood purchased a mountain bike with front fork racing shocks manufactured by Fox. (First Amended Complaint (“FAC”), ¶ 14.) In April 2011, Isherwood was riding his mountain bike in British Columbia when, following a jump, the steerer tube (which connects the forks to the frame of the bicycle) broke. (FAC, ¶ 15.) Isherwood was thrown forward, hyperextending his neck and suffering an incomplete traumatic spinal cord injury. (Id., ¶¶ 15, 16.) As a result of the incident, Isherwood was rendered a quadriplegic. According to the allegations of the FAC, inspection of the bicycle following the accident revealed that the crash was caused by the failure of the aluminum steerer tube. (Id., ¶ 17.)

Based on these allegations, Plaintiffs (Isherwood and his spouse) filed this products liability action against Fox, Specialized, King, and Does 1-10, alleging that the steerer tube “may have been designed, manufactured or sold by one of the named defendants, or . . . may have been designed or manufactured by one of the DOE defendants.” (FAC, ¶ 14.) In the operative FAC, Plaintiffs assert causes of action for (1) negligence; (2) strict products liability; (3) breach of implied warranty of merchantability; (4) breach of implied warranty for a particular purpose; and (5) loss of consortium.

I. Factual Background

A. Facts Giving Rise to Motion to Compel Further Responses to SI

On June 30, 2014, Plaintiffs served their first set of SI on Fox, which consisted of SI Nos. 1-34. (Decl. of McGuinn in Support of Mot. to Compel Further Responses to Special Interrogatories (“McGuinn Decl. (SI)”), Ex. A.) On July 23, Plaintiffs served Fox with a second set of SI, which consisted of SI Nos. 35-42 and corrected typographical errors in the first set. (Id., Ex. B.) The SI asked Fox to identify the manufacturer of the steerer tube and sought the specifications for the manufacturing and testing of the steerer tube. Fox served verified responses to both sets of SI on August 18, 2014. (McGuinn Decl. (SI), Exs. C, D.) Fox objected to almost all of the SI on the ground that the information sought by Plaintiffs constituted trade secrets and refused to disclose either the identity of the manufacturer of the steerer tube or the other information sought by the SI.

On September 18, 2014, counsel for Plaintiffs sent counsel for Fox a detailed meet-and-confer letter addressing Fox’s responses to the SI as well as Fox’s responses to Plaintiffs’ RPD. The letter began with preliminary arguments applicable to both the SI and the RPD (which generally sought the same type of information) and asserted that neither the identity of the steerer tube manufacturer nor the information concerning the specifications of the product were trade secrets. (McGuinn Decl. (SI), Ex. E.) Counsel for Plaintiffs also proposed that Fox identify, without revealing, the alleged trade secrets and then Plaintiffs would respond by describing how the information is necessary to establish their design or manufacturing defect claim. (Id.) Finally, counsel for Plaintiffs stated that:

After this informal exchange of positions—and everyone’s cards are on the table—we can hopefully reach an accommodation without using precious court resources. If not, at the very least the process will help us narrow our differences; help Fox decide with precision what is and is not a trade secret; help plaintiffs and their experts determine which information and documents are merely helpful, and which are necessary.

(Id.) After setting forth the arguments as to why the information did not constitute trade secrets, counsel for Plaintiffs addressed the specific SI and RPD for which Plaintiffs found Fox’s responses inadequate.

Counsel for Fox responded on November 11, 2014, indicating that Fox had spent millions of dollars developing its suspension forks and expressing the position that the identity of subcontractors who produce certain component parts and specifications concerning manufacturing techniques were trade secrets under California law. (Id., Ex. F.) Counsel for Fox did not acknowledge or respond to Plaintiffs’ counsel’s proposed exchange of information. Counsel for Plaintiffs then asked for two extensions of time to file a motion to compel for the SI and the RPD, which counsel for Fox granted. (Decl. of Reitzell in Support of Opp. (SI) (“Reitzell Decl. (SI)”), Exs. A and B.)

On December 22, 2014, without any further meet and confer efforts, Plaintiffs filed the first of the two motions presently before the court, seeking further responses to the SI.

B. Facts Giving Rise to Motion to Compel Further Responses to RPD

On June 30, 2014, Plaintiffs served Fox with their first set of RPD, consisting of RPD Nos. 1-21. (Decl. of McGuinn in Support of Mot. to Compel Further Responses to Requests for Production of Documents (“McGuinn Decl. (RPD)”), Ex. A.) On July 23, Plaintiffs served Fox with their second set of RPD, which corrected typographical errors in the first set and consisted of RPD Nos. 22 and 23. (Id., Ex. B.) The requests generally sought drawings of the steerer tube, as well as basic engineering and manufacturing documents related to the allegedly defective part.

Fox served verified responses to both sets of RPD on August 18, 2014. (McGuinn Decl. (RPD), Exs. C and D.) Fox objected to almost all of the RPD on the ground of the trade secret privilege and refused to produce any documents.

As indicated above, the meet-and-confer letters sent by Plaintiffs’ counsel on September 18, 2014, and by Fox’s counsel on November 11, 2014, addressed both the SI and the RPD. Following agreements to extend the time for Plaintiffs’ filing of a motion to compel, on December 19, 2014, Plaintiffs filed the second motion presently before the court, seeking further responses to the RPD.

II. Plaintiffs’ Motion to Compel Further Responses to SI

Plaintiffs seeks further responses to SI Nos. 2, 3, 5-10, 13-18, 23, 27-29, 32, 33, and 35-40. Fox objected to each of these requests on the ground that the information sought constitutes trade secrets. Plaintiffs assert that those objections lack merit.

A. Legal Standard

After receiving responses to interrogatories, the propounding party may move for an order compelling further responses if the propounding party deems an objection is without merit. (Code Civ. Proc. (“CCP”), § 2030.300, subd. (a).) The statute does not require any showing of good cause in support of the motion. (See CCP, § 2030.300, subd. (a); see also Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection. (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255, citing Coy, supra, 58 Cal.2d at 220-221.)

B. Adequacy of Meet-and-Confer Efforts

As an initial matter, Fox asserts that counsel for Plaintiffs failed to meet and confer in good faith and that the motion should be denied at the outset on that ground. Specifically, Fox points out that, after the exchange of the initial meet and confer letters, Plaintiffs’ counsel made no further attempts to informally resolve the parties’ discovery dispute.

Fox is correct that a motion to compel further responses to interrogatories is required to be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP, §§ 2016.040 and 2030.300, subd. (b).) The determination of whether a party’s efforts are adequate to satisfy the meet-and-confer requirement is discretionary. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 431.) The “reasonable and good faith” requirement requires a “frank exchange between counsel to resolve issues by agreement or to at least narrow and focus the matters in controversy before judicial resolution is sought.” (Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435.) It requires “something more than bickering with opposing counsel; rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277.)

Here, Plaintiffs’ counsel’s initial meet-and-confer letter was almost eight pages, single-spaced, and addressed the specific SI and RPD for which Plaintiffs believed further responses were necessary. The letter also suggested that both sides supply additional information to facilitate the informal resolution of the dispute. Fox’s counsel’s response to the letter made clear that Fox stood behind its trade secret objections, and did not acknowledge the suggestion that the parties supply each other with additional information. At that point, it was reasonable for Plaintiffs’ counsel to believe that any additional meet-and-confer efforts would be futile. Consequently, under the circumstances, Plaintiffs’ counsel made a reasonable and good faith attempt at informal resolution of the dispute prior to filing the motion in accordance with CCP sections 2030.300 and 2016.040.

C. Analysis

As indicated above, Fox objected to each of the SI at issue in Plaintiffs’ motion on the basis of trade secret protection. Evidence Code section 1060 establishes a privilege for trade secret information. However, the party claiming the trade secret privilege has the burden of establishing its existence. (Bridgestone/Firestone, Inc. v. Super. Ct. (1992) 7 Cal.App.4th 1384, 1393 (“Bridegestone”).) To carry this burden, the party asserting the privilege must provide an affidavit or declaration listing the declarant’s qualifications to give an opinion, identifying the alleged trade secret, identifying the documents disclosing the trade secret, and presenting evidence that the secret qualifies as a “trade secret.” (See Stadish v. Super. Ct. (1999) 71 Cal.App.4th 1130, 1144-1145.) If the party claiming trade secret protection satisfies these requirements, the party seeking discovery must then make a prima facie particularized showing that the information sought is relevant and necessary to the proof of a material element of one or more causes of action and that it is reasonable to conclude that the information is essential to a fair resolution of the lawsuit. (Bridgestone, supra, 7 Cal.App.4th at p. 1393.) The holder of the privilege must then demonstrate any claimed disadvantages of a protective order. (Id.)

Here, Fox makes two arguments in its opposition. First, Fox argues that the motion should be denied due to Plaintiffs’ failure to meet and confer. That argument, as stated above, lacks merit. Second, Fox asserts that the motion is premature because the parties have not entered into a protective order. That argument is essentially irrelevant to the present analysis. There is no motion for a protective order presently before the court and the fact that the parties have not been able to stipulate to a protective order has no bearing on whether Fox has met its burden to justify its objections to Plaintiffs’ SI which, in this case, would have required Fox to establish that the information sought by the SI constitute trade secrets. (Bridgestone, supra, 7 Cal.App.4th at p. 1393.) Fox makes no attempt to establish that the information sought by the SI constitutes trade secrets. Consequently, it has failed to justify its objections.

Accordingly, Plaintiffs’ motion to compel further responses to the SI is GRANTED. Accordingly, within twenty calendar days of notice of this order, Fox shall serve verified, code-complaint further responses, without objection, to SI Nos. 2, 3, 5-10, 13-18, 23, 27-29, 32, 33, and 35-40.

III. Plaintiffs’ Motion to Compel Further Responses to RPD

Plaintiffs seek further responses to RPD Nos. 1, 6, 7, 12, 18, and 22. Plaintiffs also ask the court to compel compliance with Fox’s response to RPD No. 10, in which Fox agreed to produce documents responsive to the request.

A. Legal Standards

Concerning motions to compel further responses, upon receipt of a response to requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. (CCP, § 2031.310, subd. (a)(1) – (3).) The motion for an order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP, § 2031.310, subd. (b)(1); Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Super. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes good cause, the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

If a party demanding a response to a request for production of documents believes that the responding party’s production of documents is incomplete, it may bring a motion to compel compliance under CCP section 2031.320. Unlike a motion to compel further responses made pursuant to CCP section 2031.310, a motion to compel compliance does not require the moving party to make a showing of good cause justifying the discovery. (CCP, § 2031.320.) “All that has to be shown is the responding party’s failure to comply as agreed.” (See Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014) ¶ 8:1508.1, p. 8H-50.)

B. Adequacy of Meet-and-Confer Efforts

Fox’s opposition to Plaintiffs’ motion to compel further responses to the RPD is almost identical to its opposition to the motion to compel further responses to the SI. In its opposition to this motion, Fox begins by arguing that Plaintiffs’ counsel failed to meet and confer and that the motion should be denied on that ground. As with the previous motion, this argument lacks merit. In Plaintiffs’ counsel’s letter dated September 18, 2014, counsel expressly addressed RPD Nos. 1, 6, 7, 10, 11, 12, 18, and 22—all of the requests that are now at issue in Plaintiffs’ motion. For the same reasons stated with regard to the first motion, Plaintiffs’ counsel made a reasonable and good faith attempt at informal resolution of the dispute prior to filing the motion in accordance with CCP section 2031.310, subdivision (b)(2) and CCP section 2016.040.

C. RPD No. 10

RPD No. 10 seeks “the results of [Fox’s] quality procedures that were conducted with regard to the manufacture of the failed subject steerer.” (McGuinn Decl. (RPD), Ex. A, p. 5.) Fox objected to the request on the ground that the phrase “failed subject steerer” is vague, ambiguous, and inaccurate. (Id., Ex. C, p. 8.) Fox also objected on the ground of the trade secret privilege. (Id.) Fox then provided the following substantive response: “without waiving any objections, Fox will produce redacted copies of the traveler documents received with the first production lot of steerer tubes used to produce 2008 model year Fox Vanila RC2 36 mm suspension forks and the testing records for samples of finished 2008 model year Fox Vanila RC2 36 mm suspension forks produced during 2008.” (Id.)

Plaintiffs represent that Fox has failed to produce the documents referenced in the response to RPD No. 10, and asks the court to compel compliance with Fox’s statement of compliance. Fox does not dispute that it has failed to produce the documents in compliance with its response or otherwise indicate why it has not complied. Because Plaintiffs have demonstrated that Fox has failed to comply with its statement of compliance, the motion to compel compliance with the response to RPD No. 10 is GRANTED. Fox shall serve Plaintiffs with the documents within twenty calendar days of notice of this order.

D. Remaining Requests (RPD Nos. 1, 6, 7, 12, 18, and 22)

The remaining requests seek the specifications of the allegedly defective steerer tube and information concerning its manufacture. For example, RPD No. 1 seeks Fox’s “official drawing of the failed subject steerer . . . include[ing], but [] not limited to, the dimensions of the steerer, the designation or composition of the material for which the steerer is made, the heat treatment of the steerer, and the surface finish and surface coding on the steerer.” (McGuinn Decl. (RPD), Ex. A, p. 4.) The remaining requests seek similar information. Fox objected to each of the requests on the basis of the trade secrets privilege and refused to produce any documents. Plaintiffs assert that these objections lack merit.

The first question is whether Plaintiffs have established good cause. (CCP, § 2031.310, subd. (b)(1); Kirkland, supra, 95 Cal.App.4th at p. 98.) As indicated above, to establish good cause, the burden is on Plaintiffs to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying the discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp., supra, 53 Cal.4th at p. 1117.)

Concerning good cause, Plaintiffs point out that they have brought a manufacturing defect claim, which will require them to prove that the allegedly defective product differs from the manufacturer’s design or specifications. (Pl.s’ Mem. of Ps & As, p. 11, citing CACI 1202.) According to Plaintiffs, “[w]ithout disclosure of the steerer tube’s design specifications, there will be nothing with which to compare the failed steerer tube.” (Id., p. 12.) In support of their motion, Plaintiffs have also attached the declaration of Lawrence Kashar, Ph.D., a metallurgist and metallurgy engineer. (McGuinn Decl. (RPD), Ex. I.) Mr. Kashar declares that, “[i]n [his] experience, a manufacturer of a product such as a mountain bike fork will develop detailed specifications for the manufacture of a component such as a steerer tube [and] [t]hese specifications are an integral part of the engineering process.” (Id., ¶ 5.) Mr. Kashar further states the following:

To determine whether a component is acceptable or defective, and whether the defect is a manufacturing defect or a design defect, it is necessary to know the basic information concerning the configuration, materials, processes and procedures that were used to design and manufacture that component. Among the processes and procedures would be included not only those steps that are involved with the actual fabrication of the part by the manufacturer and its suppliers and sub-contractors, but those steps and the methods involved that the designer, the manufacturer and its suppliers and sub-contractors take to ensure that the component has been fabricated according to the approved design, from the specified materials, to the specified shape and dimensions, with the specified strength and other material characteristics that the component is designed to exhibit and possess.

(Id.)

Based upon Mr. Kashar’s declaration and Plaintiffs’ own articulation of the relevance of the requested documents, Plaintiffs have demonstrated both the relevance of the requested information and set forth specific facts justifying the discovery. Accordingly, Plaintiffs have met their burden of demonstrating good cause. The burden therefore shifts to Fox to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

Fox objected to the requests on the basis of the trade secret privilege. In its opposition to the motion, however, Fox does not attempt to justify those objections. As with its opposition to the motion to compel further responses to the SI, Fox simply argues that the motion is premature because the parties have not yet entered into a protective order. (Fox’s Opp., p. 1 [“Plaintiffs have agreed to enter into a protective order as proposed by Fox, but that protective order is being held up by defendant [Specialized]. Specialized has refused to agree to the two-level protective order in its current form. Until this issue is resolved, plaintiffs’ motion is premature.”].) Fox has cited no authority for the proposition that Plaintiffs must wait until all parties have stipulated to an agreeable protective order prior to conducting discovery, including the filing of motions to compel when necessary. Fox’s argument assumes a proposition that it is required to prove: Fox asks the court to defer a ruling on the motions to compel until there is a protective order in this case, but has failed to demonstrate that the information requested should be protected in the first instance.

Because Plaintiffs have demonstrated good cause and Fox has failed to justify its objections, Plaintiffs’ motion to compel further responses to RPD Nos. 1, 6, 7, 12, 18, and 22 is GRANTED. Accordingly, within twenty calendar days of notice of this order, Fox shall serve verified, code-compliant further responses, without objection, to the requests, and produce documents in accordance with those responses.