1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 HOI KWONG YU, et al., Case No. 23-cv-03009-RFL (LB)

12 Plaintiffs,

DISCOVERY ORDER

13 v. Re: ECF No. 75 & 76 14 ALIEXPRESS E-COMMERCE ONE PTE. LTD., et al., 15 Defendants. 16 17 INTRODUCTION 18 Calvin Yu died in June 2020 in a fire allegedly caused by a malfunction in a 3D printer 19 manufactured by defendant Shenzhen Tronxy Technology Co. and sold to the decedent via an 20 online platform — operated by defendant AliExpress E-Commerce One — that allows buyers to 21 buy products from sellers. His parents, on their own behalf and as successors to their son’s estate, 22 sued the defendants for strict liability and negligence.1 Shenzhen Tronxy has not appeared. 23 On January 10, 2025, one week before the deadline to complete document discovery, the 24 plaintiffs and AliExpress filed two discovery letters, disputing (1) the defendants’ right to medical 25 records and the decedent’s internet-browsing history, discovery that the plaintiffs resist in part on 26

27 1 J. Case-Mgmt. Statement – ECF No. 52 at 2–3; Order – ECF No. 48. Citations refer to material in the 1 the ground that it implicates their privacy interests, and (2) the plaintiffs’ requests for documents 2 and depositions of AliExpress employees and corporate designees.2 The disputes are premature 3 because the parties have not conferred about them adequately. They must do so and file an update 4 with their respective proposed compromises by Wednesday, February 5, 2025, at noon. The court 5 sets a discovery hearing for Thursday, February 6, 2025, at 9:30 a.m. in Courtroom B, 450 Golden 6 Gate Avenue, San Francisco, California. 7 8 STANDARD OF REVIEW 9 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s 10 claim or defense and proportional to the needs of the case, considering the importance of the issues 11 at stake in the action, the amount in controversy, the parties’ relative access to relevant information, 12 the parties’ resources, the importance of the discovery in resolving the issues, and whether the 13 burden or expense of the proposed discovery outweighs its likely benefit. Information within this 14 scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). 15 “Pretrial discovery is ordinarily accorded a broad and liberal treatment.” Peng v. NorthWestern Mut. 16 Life Ins. Co., No. 17-cv-01760-SI, 2017 WL 3007030, at *1 (N.D. Cal. July 14, 2017) (cleaned up) 17 (quoting Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993)). The party moving to compel discovery 18 “has the initial burden of establishing that the information sought is relevant to any party’s claim or 19 defense and proportional to the needs of the case.” Impinj, Inc. v. NXP USA, Inc., No. 19-cv-03161- 20 YGR (AGT), 2022 WL 16586886, at *2 (N.D. Cal. Nov. 1, 2022) (cleaned up). 21 California’s constitution bestows a broad right of privacy. Cal. Const. Art. I, § 1; El Dorado 22 Sav. & Loan Ass’n v. Super. Ct., 190 Cal. App. 3d 342, 345 (1987). This right is “interrelated” with, 23 but is “broader” than, the psychotherapist-patient privilege; the latter has been called “one aspect of 24 the [constitutional] right of privacy.” Davis v. Super. Ct., 7 Cal. App. 4th 1008, 1013 (1992). The 25 privacy right extends to discovery proceedings in civil actions. San Diego Trolley, Inc. v. Super. Ct., 26 87 Cal. App. 4th 1083 (2001). “The right to privacy is not absolute; it may be abridged to 27 1 accommodate a compelling public interest.” Moskowitz v. Super. Ct., 137 Cal. App. 3d 313, 316 2 (1980). “One such interest, evidenced by California’s broad discovery statutes, is ‘the historically 3 important state interest in facilitating the ascertainment of truth in connection with legal 4 proceedings.’” Id. (quoting Britt v. Super. Ct., 20 Cal. 3d 844, 857 (1978)). 5 6 ANALYSIS 7 1. Medical Records 8 AliExpress wants the plaintiffs’ and decedent’s medical records. It contends that the plaintiffs 9 resist producing any records for the parents or any records for the decedent from before the June 10 2020 fire, “claiming that the request violated their constitutional rights.”3 11 To support its request, AliExpress points to the complaint’s allegations. The fire occurred in 12 June 2020, during the pandemic, and the son was at home, sheltering with his parents. They tried 13 to save him, couldn’t, and were there when the firefighters finally extracted him from the house.4 14 The son had burns over ninety percent of his body and — despite aggressive medical interventions 15 — died the next day.5 The parents alleged that the fire caused injury to their respiratory and 16 cardiovascular systems and that they suffered “severe and serious emotional distress, including 17 suffering, anguish, fright, horror, anxiety, worry, shock, agony, and desolation.”6 All plaintiffs 18 incurred costs for medical treatment.7 19 According to AliExpress, it needs the parents’ records to evaluate any preexisting conditions, 20 “contributing factors” such as smoking, medical treatment for injuries, and mental-health 21 treatment for their claim of emotional distress. The son’s mental-health issues — PTSD and 22 depression — may have caused him to engage in risky behavior. He tested positive for 23 benzodiazepine — a strong sedative — when he arrived at the hospital. He “possessed marijuana 24

25 3 J. Disc. Br. – ECF No. 75 at 2. 26 4 Third Am. Compl. – ECF No. 55 at 12 (¶ 41). 5 Id. (¶ 43). 27 6 Id. at 13 (¶¶ 49–50). 1 and other undisclosed drugs.” His medical history will show whether he had legal prescriptions 2 and whether the drugs may have impaired his faculties and his ability to escape the fire.8 3 The plaintiffs “agree that AliExpress is entitled to seek records related only to the claimed 4 injuries,” not unrelated medical records. They offer that the father did not seek medical care for his 5 physical or emotional injuries, and his physical injuries have resolved. The mother saw a mental- 6 health provider. AliExpress did not subpoena those records, but the plaintiffs “agreed to assist 7 with obtaining the medical records via authorization” and asked Kaiser for them on December 6, 8 2024. They contend that the request for the son’s medical records preceding the fire is intrusive 9 and violates his privacy rights.9 10 The plaintiffs agreed in part to the requests by requesting the mother’s mental-treatment records 11 from Kaiser and confirming the absence of other records related to the parents’ treatment for any 12 injuries. The dispute thus is in part moot. That suggests that the parties did not engage in the meet- 13 and-confer mandated by the referring judge’s standing order (requiring “a live conversation” 14 between counsel before they file a discovery dispute) and the undersigned’s standing order 15 (attached).10 The letter looks like a rush job, where AliExpress pasted in its position first, and then 16 the plaintiffs pasted in theirs. (Possibly that is because the parties hurried to file the letter one week 17 before document discovery closed.) AliExpress’s letter to the trial judge — asking for a hearing to 18 discuss the case’s procedural posture, given the non-appearance of the manufacturer and its inability 19 to date to investigate the cause of the fire — also suggests that the parties need to come up with a 20 plan to move the case forward, including at least by producing relevant records.11 21 The parties can do more to narrow their disputes or illuminate their differences. For the 22 parents, if they are conceding full recovery, and there are no treatment records for physical injury, 23 then the parties ought to be able to resolve the discovery dispute. The mother’s Kaiser records are 24 forthcoming. For the son, a lookback period is appropriate to evaluate his medical condition 25 26 8 J. Disc. Br. – ECF No. 75 at 2. 9 Id. at 2–3. 27 10 https://www.cand.uscourts.gov/judges/lin-rita-f-rfl/. 1 because it is relevant to causation and comparative fault. It also is relevant to his life expectancy 2 and thus to damages. Allen v. Toledo, 109 Cal. App. 3d 415, 424 (1980) (“The life expectancy of 3 the deceased is a question of fact for the jury to decide, considering all relevant factors including 4 the deceased's health, lifestyle and occupation.”). It is not correct — as set forth above in the 5 standard of review — that a blanket privacy interest precludes contextual medical evidence. Also, 6 the parties did not address the extent to which a person’s right of privacy survives his death. See 7 Pfaff v. Merck & Co., No. 20-mc-80148-AGT, 2020 WL 5760478, at *1 (N.D. Cal. Sept. 28, 8 2020) (flagging issue and ordering production of medical records). 9 In sum, the parties must confer to narrow their disputes and propose compromises on the 10 remaining issues: the medical records of the parents relevant to any claimed damages for physical 11 injuries and the son’s medical records. 12 13 2. Browsing History 14 AliExpress wants the decedent’s internet-browsing history to understand what he knew about 15 the 3D printer, specifically, what he knew about its operation, whether he searched for information 16 to customize it, whether he downloaded updates from Shenzhen Tronxy, and whether he 17 downloaded jailbreak software to allow him to bypass the printer’s heat-stabilization mechanisms. 18 Also, the decedent was an electrical-engineering student, and the fire investigator’s photographs 19 showed an apartment “littered with electrical components, wires, soldering irons, heavy 20 machinery, assault-style rifles, and other items that could have contributed to or caused the fire.” 21 The browsing history may show experiments that he was conducting. The plaintiffs have agreed to 22 produce the history but only with keyword searches for “Tronxy” or “printer.” AliExpress wants 23 full access: it acknowledges that this may result in production of irrelevant information, but the 24 decedent cannot testify, any privacy interests are protected by a protective order, and the plaintiffs 25 26 27 1 rejected its proposal that they could review and redact irrelevant entries.12 The plaintiffs want 2 AliExpress to propose search terms and says that it has refused to do so.13 3 AliExpress cites Camp v. L.A. Arena Co. to support its argument for complete production of 4 the browsing history. There, in a case involving the plaintiff’s religious objection to taking the 5 COVID-19 vaccine, the court allowed production of the plaintiff’s browser history for his devices. 6 No. 5:22-cv-02220-JGB (DTBx), 2024 WL 1634095, at *20 (C.D. Cal. Mar. 22, 2024). The 7 defendant asked for production of (1) the plaintiff’s devices used to transmit communications 8 about a vaccine exemption, attend religious services, and look up vaccine information (RFPs 32– 9 34), (2) the complete browser history of the devices (RFP 35), and (3) documents about the 10 plaintiff’s participation in or viewing of internet sites regarding religious exemptions to the 11 vaccine and the safety of the vaccine (RFPs 38–41). Id. at *18–19. The court denied production of 12 the devices as unduly intrusive but allowed the rest. Id. at *19–20. 13 The Camp court did not explicitly address the privacy issues. It also coupled its disclosure of 14 the browser history to tailored document requests, somewhat suggesting that it considered the 15 request for the browsing history to be tailored to the other requests. Id. Courts in any event have 16 recognized that browser history implicates privacy interests or concerns, “perhaps a search for 17 certain symptoms of disease, coupled with frequent visits to WebMD.” Hensen v. Turn, Inc., No. 18 15-cv-01497-JSW (LB), 2018 WL 5281629, at * 8 (N.D. Cal. Oct. 22, 2018) (citing and quoting 19 Riley v. California, 573 U.S. 373, 395 (2014) and denying request to produce full browsing history 20 in a case where the plaintiffs agreed to produce the relevant cookies and browsing histories for 21 particular sites). In a case that did not involve a decedent, asking for it all is too much, but refusing 22 to provide information only about the 3D printer is too little. In this case, as discussed above, the 23 analysis also turns on the extent to which the son’s privacy interest survived his death, an issue 24 that the parties did not brief. 25 26

27 12 J. Disc. Br. – ECF No. 75 at 3. ] The parties ought to be able to work out something to address this dispute. There could be 2 || reasonable time parameters. AliExpress could propose reasonable search terms (something that it 3 || will have to do in any event). Asking the plaintiffs to review the browser history might be time- 4 || consuming and expensive, but AliExpress could engage a third-party vendor to search for 5 || responsive information. The plaintiffs could then review that information first. A protective order 6 || might serve everyone’s needs. The parties must address these issues during their meet-and-confer. 7 8 || 3. The Plaintiffs’ Document Requests and Depositions 9 The disputes in the letter brief at ECF No. 76 are premature. The parties have not conferred on 10 || issues and again are talking past each other. For example, the plaintiffs dispute that they have 11 received certain documents. AliExpress responds that they do not exist or that it has produced 12 || them." That is unhelpful and a waste of time. Going forward, the parties must talk things out and 13 || raise only real disputes. They can mimic the motion-opposition-reply format by this process: 14 || moving party emails word copy of up to two pages, responding party inserts opposition of up to 15 || two pages, and moving party inserts a reply of up to one page and files the discovery brief.

17 CONCLUSION Z 18 The parties must confer and file their updated disputes by Wednesday, February 5, 2025, at 19 || noon. The court will hear the matters on its regular civil calendar on Thursday, February 6, 2025, 20 || at 9:30 a.m. The disputes are preserved. The parties may adjust the deadline to file an update by 21 stipulation. 22 IT IS SO ORDERED. 23 Dated: February 3, 2025 LAE 24

LAUREL BEELER

25 United States Magistrate Judge 26 27 28 4 J. Disc. Br. — ECF No. 76 at 4.