See also AFL Telecomms. LLC v. SurplusEQ.com Inc., No. CV11-1086 PHX DGC, 2012 WL 2590557, at *2 (D. Ariz. July 5, 2012) (concluding that plaintiff (" AFL" ) was obligated to produce source code in the possession of its parent (" Fujikura" ) where the record showed that " 'the subsidiary was an agent of the parent in the transaction giving rise to the suit and in litigating the suit on the parent's behalf[,]'" in that, inter alia, AFL was the exclusive licensee of Fujikura's intellectual property rights related to fusion splicers (the product at issue in the case), and " the licensee relationship between AFL and Fujikura was created specifically so that AFL could bring this lawsuit[,]" " AFL houses two Fujikura technicians in its office in South Carolina to perform repairs on fusion splicers[,]" and " AFL and Fujikura have maintained a close relationship throughout this lawsuit, with Fujikura personnel providing expertise and declarations when needed by AFL" ) (quoting Gerling, 839 F.2d at 140); Camden Iron & Metal, Inc. v. Marubeni Am. Corp., 138 F.R.D. 438, 443 (D.N.J. 1991) (also finding this test to

See, e.g., AFL Telecomms. LLC v. SurplusEQ.com Inc., No. CV11-1086 PHX DGC, 2012 WL 2590557, at *2 (D. Ariz. July 5, 2012) (relying on a Third Circuit case cited by the Ninth Circuit in In re Citric to adopt a more expansive definition of "control"); see also Thales Avionics Inc. v. Matsushita Avionics Sys. Corp., No. SACV 04-454-JVS(MLGx), 2006 WL 6534230, at *4-5 (C.D. Cal. Mar. 8, 2006) (relying on case law outside the Ninth Circuit to consider the "nature of the relationship" between a subsidiary and its parent corporation to determine "control"); Choice-Intersil Microsystems, Inc. v. Agere Sys., Inc., 224 F.R.D. 471, 472-73 (N.D. Cal. 2004) (same). However, as duly noted by district courts within the Ninth Circuit, the Ninth Circuit has not expanded the definition of "control" to include a practical ability to obtain documents.

They reason that, because Citric Acid cited decisions from other circuits that "adopted a more expansive definition of 'legal control,'" the Ninth Circuit would approve looking at other factors that suggest control might exist even in the absence of a "legal right to obtain documents on demand." See Doc. No. 247 at 12-14 & n.7. For example, Plaintiffs urge the court to follow the reasoning of AFL Telecommunications LLC v. SurplusEQ.com, Inc., 2012 U.S. Dist. LEXIS 92892 (D. Az. July 5, 2012) and the cases on which it relies. See Doc. No. 247 at 16; Doc No. 251 at 2-5.

The Court notes that one district court in this Circuit has carefully analyzed Citric Acid and found that the Ninth Circuit cited favorably therein to a Third Circuit opinion which holds that “practical ability” is a factor for the “legal control” test. AFL Telecomms. LLC v. SurplusEQ.com Inc., No. CV11-1086 PHX DGC, 2012 WL 2590557, at *2 (D. Az. July 5, 2012) (citing Gerling Int'l Ins. Co. v. Comm'r, 839 F.2d 131, 140-41 (3rd Cir. 1988)). Precedents in this district have, however, distinguished AFL Telecommunications. See Seifi v. Mercedes-Benz U.S.A., LLC, No. 12-CV-05493TEH (JSC), 2014 WL 7187111, at *2 (N.D. Cal. Dec. 16, 2014); cf. also Dugan v. Lloyds TSB Bank, PLC, No. 12CV02549WHANJV, 2013 WL 4758055, at *2 (N.D. Cal. Sept. 4, 2013).

In so concluding, the court noted that the United States Supreme Court recently held that Mercedes-Benz USA is Daimler's exclusive importer and distributor in the United States. See Daimler AG v. Bauman, 134 S. Ct. 746, 752 (2014). Plaintiffs' citation to AFL Telecommunications LLC v. SurplusEQ.com Inc., No. 11-1086, 2012 WL 2590557, at *2 (D. Ariz. July 5, 2012), is likewise unpersuasive. (Dkt. No. 92-4 at 3:6-4:3.) Although the AFL court noted the Ninth Circuit's Citric Acid legal control test, it applied a "more expansive" definition of legal control, relying on the Third Circuit's decision in Gerling International Insurance Co. v. Commissioner, 839 F.2d 131, 140-41 (3rd Cir. 1988).