Opinion
CIVIL W-22-CV-00776-ADA W-22-CV-00777-ADA
04-04-2024
LASHIFY, INC., Plaintiff, v. QINGDAO LASHBEAUTY COSMETIC CO., LTD., Defendant. LASHIFY, INC., Plaintiff, v. QINGDAO HOLLYREN COSMETICS CO., LTD, Defendant.
ORDER ON DISCOVERY DISPUTES
DEREK T. GILLILAND UNITED STATES MAGISTRATE JUDGE
Before the Court is a Discovery Dispute Chart, attached as part of this Order, which was submitted to the undersigned via email on March 28, 2024. The Court has reviewed the materials submitted and determined that a hearing is not necessary. The Court issues the following rulings:
1. On the issue of Samples of Accused Products (RFP No. 3), Defendant Qingdao Hollyren Cosmetics Co., Ltd. (“Hollyren”) is ORDERED to produce by April 8, 2024, samples of all products on Exhibit 1 within its possession, custody, or control, or identify products that have already been produced that Defendant Hollyren stipulates are representative of the un-produced samples. Such production or identification shall be made regardless of whether the products were allegedly sold in the United States. Defendant Worldbeauty is ORDERED by April 8, 2024, to produce a sample of the DIY Kit. All parties, Plaintiff and Defendants, are ordered to provide updated and verified interrogatory answers by April 8, 2024.
2. On the issue of Manufacturing and Sales Information for Accused Products (Interrogatory Nos. 1-2), Defendants are ORDERED to supplement their interrogatory answers to provide the manufacturing and sales data identified in Exhibits 8 and 9 by April 8, 2024.
DISCOVERY DISPUTE CHART
Issue
Lashify's Position (Requesting Party)
Defendants' Positions (Responding Parties)
Samples of Accused Products RFP 3
Lashify served RFP3, which requests samples of the accused products, on March 21, 2023, the first day of fact discovery. Over the last year, the Court has ordered defendants to provide these samples at least four times. Dkt. 77, 99, 107, 117. Hollyren: Hollyren has still failed to produce 80 samples, which are identified in Exhibit 1. For 4 products, Hollyren has never given any reason for failing to provide them. Hollyren claims 51 samples are out of stock, but its sales records show that it sold these products repeatedly during the damages period (a fact that Hollyren has never disputed). Exhibit 2. Hollyren cannot avoid discovery on these products by suddenly claiming they are out of stock. Indeed, Hollyren has produced other products that it previously claimed were out of stock, showing that Hollyren can get additional samples from its manufacturer. In addition, Hol-lyren's co-defendant Worldbeauty testified that, even if a product were out of stock, it could order the sample from the factory and have it in two days. (Exhibit 3 (Sun Dep. Tr.) 29:3-16.) Hollyren shares the same manufacturer with Worldbeauty. Hol-lyren's documents also show that they routinely provide hundreds of product samples to prospective customers in a couple of days (see, e.g., Exhibit 4 (sending potential customer 828 samples)). Hollyren claims 12 of the products were never sold in the U.S. However, Exhibit 5 summarizes data from Hollyren's own U.S. sales records, which show these products were sold in the U.S. during the damages period. Hollyren claims 12 products have an invalid product number. However, Lashify has identified where in defendant's sales data
As Lashify's ever-shrinking exhibits demonstrate, Defendants have been continually addressing Lashify's concerns by obtaining and providing additional product samples and manufacturing information and investigating Lashify's never-ending list of alleged discovery issues. Worldbeauty and Hollyren both provided verified interrogatory responses to Lashify last week, and will provide further verifications for any additional supplemental responses. Lashify has yet to verify its supplemental interrogatory responses despite Defendants' requests. Worldbeauty: The only “missing” product sample Lashify identifies (among literally hundreds of product samples) is the “DIY Kit.” The sales of the “DIY Kit” during the relevant time period appear to be $1,500 (150 units sold at $10). See WOR0052034 at line 1726. As Worldbeauty has informed Lashify, the “DIY Kit” includes eyelashes and other items (typically glue, remover, and tweezers), and the kits have varying combinations of lashes. There is not a way to know which type of lashes were in each kit, as each kit was assembled with varying combinations of lash types that is not indicated in the sales data. Worldbeauty is willing to consider a stipulation from Lashify regarding a produced sample being representative of the “DIY Kit” identified in WOR0052034 at line 1726 considering the extremely small quantity at issue here.
Hollyren: Hollyren produced 24 additional (and unique) product samples on March 20 and Hollyren anticipates making an additional product sample production in the next week. As Hollyren informed Lashify during a meet and confer on March 18, Hollyren intends to identify a representative product sample for
these product numbers appear (see Exhibit 6). Hollyren has not responded, except to say that FIA07 is a collection name that includes DD701, DD702, and DD703. That representation is inconsistent with Hol-lyren's sales documents (HOL000482). Hollyren has not addressed this inconsistency. Hollyren has represented that 1 product (RTJ001) is a strip lash, not an accused DIY lash product. However, Hollyren's own sales data (HOL0001035) describes RTJ001 as a DIY lash product. Hollyren has not responded to this inconsistency. Hollyren proposed that certain unidentified, produced products be deemed “representative” of the missing product samples. This proposal does not work because Lashify has no information to confirm or refute that these product model numbers are in fact representative. Hollyren should not be able to unilaterally decide that one product is representative. Worldbeauty: Worldbeauty has still not produced a sample of the “DIY Kit.” Both defendants have also represented that certain product models are the same as other product models that have been produced. Based on those representations, Lashify has removed those product models from Exhibit 1, but defendants still need to provide verified interrogatory responses confirming this information. Defendants claim to be investigating these issues, but they have been doing so for over 1 year. Fact discovery closed on February 15, and opening expert reports were served on March 5. The Court should order defendants to provide the missing product samples by April 3. Requested Relief: The Court should order defendants to comply with the Court's prior four orders and produce product samples by April 3, 2024 for all of the model numbers
any accused products for which a sample has not been produced, and Hollyren commits to either producing additional samples or identifying the representative samples by April 5, 2024. If Lashify identifies an actual issue with any of Hollyren's representative products (rather than a hypothetical one), it may raise that issue with Hollyren and the Court if necessary. Lashify's continued citation to Exhibit 4 (in multiple dispute charts) remains disingenuous. As is clear in Exhibit 4, Hollyren sent 46 different samples (many varying only by lash length and band color) to a customer, not 828 unique samples. In this case, Hollyren has produced well over 100 unique samples of accused products. Hollyren has provided a verified interrogatory response stating that certain products in Hollyren's sales data (including but not limited to 70C, 70D, AC8000, AC9000, K23, KF001, LF01, SFA0004, SFA001, VRF0006, RTJ001) are strip lashes, salon lashes, glue, tweezers, etc.-indisputably not accused eyelash products. It is not clear what else Lashify wants Hollyren to provide here. Requested Relief: The Court should deny Lashify's request. Hollyren has committed to identify representative product samples for any accused products for which a sample has not been produced by April 5, 2024. And Defendants have provided verified interrogatory responses and have agreed to provide verified supplemental responses as needed. The Court should also order Lashify to verify its interrogatory responses.
identified in Exhibit 1. The Court should also order defendants to provide verified interrogatory responses confirming prior representations about certain product numbers being the same as other product numbers that have been provided.
Manufacturing and Sales Information for Accused Products Interrogatory Nos. 1-2
Lashify served Interrogatories 1 and 2, which request manufacturing and sales information for the accused products, on March 21, 2023, the very first day of fact discovery. Over the last year, the Court has ordered defendants to provide this information at least four times. Dkt. 77, 99, 107, 117. Lashify is still missing product information for the Hollyren products in Exhibit 7 and the Worldbeauty “DIY Kits.” Worldbeauty has represented that DB16L is the same as EB16-1, but Worldbeauty still needs to confirm this in a verified interrogatory response. In addition, defendants have still not produced sales information for the products identified in Exhibit 8 or provided the missing unit information requested in Exhibit 9, which the Court ordered defendants to provide by January 18. Dkt. 107 at 9-10. Here again, defendants claim to still be investigating these issues, but they have been investigating for over 1 year. Fact discovery is over, and the parties are now working on rebuttal expert reports. The Court should order defendants to provide the missing sales and manufacturing information by April 3, 2024. Requested Relief: The Court should order defendants to comply with the Court's prior four orders and produce the missing sales and manufacturing information identified in Exhibits 7, 8, and 9 by April 3, 2024. The Court should also order defendants to provide verified interrogatory responses confirming prior representations about certain product models being the same as other product models.
Worldbeauty addressed the “DIY Kit” above, and already committed to providing a further verified supplemental interrogatory response for the few product sample representations remaining. Hollyren has identified the manufacturing methods for 28 of the 50 model numbers listed in Exhibit 7. As noted above, Hollyren has already provided a verified interrogatory response stating that almost every other model number listed is not an accused eyelash product or is not a valid model number-it is not clear what else Lashify wants Hollyren to provide here. Hollyren identified the contents of specific DIY lash kits in its February 15, 2024 supplemental response to interrogatory no. 1. If Lashify believes others remain unidentified, it has not previously raised this issue with Hollyren. The Court ordered the parties to meet and confer regarding Lashify's outstanding questions regarding sales (March 7, 2024 Hearing Tr. at 33:25-35:6), and the parties are engaged in that process. As is clear from Exhibit 8, Lashify does not contend that any sales information for Worldbeauty is missing from Worldbeauty's production. As Worldbeauty has told Lashify, Worldbeauty is investigating the alleged inconsistencies in the number of pairs sold that Lashify identified in WOR0052034 (in Exhibit 9). Worldbeauty will provide a verified supplemental interrogatory response to interrogatory no. 9 if there is any information to supplement regarding Lashify's questions here. During the parties' March 18 meet and con-
fer (and again via email on March 26), Hollyren confirmed that it does not track the number of pairs of lashes sold in the regular course of business, and further this information may or may not be reflected on individual invoices. Hollyren has followed up with Lashify regarding Lashify's remaining questions for Hollyren on Exhibit 9, but Lashify has not yet provided a response.
Requested Relief: The Court should deny
Lashify's request in light of the Court's prior order to meet and confer regarding Lashify's outstanding questions regarding sales data and Defendants' ongoing cooperation in providing the additional information requested when possible. Lashify's list of issues has grown very small due to Defendants' cooperation and the present circumstances have passed the point of diminishing returns from costly discovery dispute practice.
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