1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EAGLE EYES TRAFFIC INDUSTRY USA Case No. 21-cv-07097-JST (TSH)

HOLDING LLC,

8 Plaintiff, DISCOVERY ORDER 9 v. Re: Dkt. No. 30 10

E-GO BIKE LLC,

11 Defendant. 12 13 Plaintiff Eagle Eyes Traffic Industry USA Holding LLC (“Eagle Eyes”) moves the Court 14 for an order compelling Defendant E-Go Bike LLC (“E-Go”) to provide full and complete 15 responses, without objections, to Eagle Eyes’ requests for production of documents, set one 16 (“RFPs”); interrogatories, set one (“rogs”); and requests for admission, set one (“RFAs”). Eagle 17 Eyes also seeks sanctions under Rule 37 in the amount of $3,912.50. Based on the parties’ written 18 filings, it had initially seemed that the Court must decide whether E-Go was properly served with 19 the discovery requests and whether it failed to respond in time. At the June 30, 2022 hearing, 20 however, E-Go’s counsel admitted he was validly served with the discovery requests and that he 21 did not serve timely responses, so there is actually no dispute about that. 22 By way of background, in support of its motion to compel Eagle Eyes submitted a 23 declaration stating that it served the three sets of discovery requests by email and mail on January 24 5, 2022. ECF No. 30-1, ¶ 2. Exhibit 1 to that declaration contains the email as well as the proof 25 of service by mail. Exhibits 2, 3 and 4 are the RFAs, RFPs and rogs. Exhibit 7 to the declaration 26 is an email from E-Go’s counsel confirming that he received replacement copies of this discovery 27 on April 11, 2022 and stating his intent to serve Defendant’s responses by May 10, 2022. Exhibits 1 by May 10. The last email is an offer by E-Go to provide verified responses “as early as June 2.” 2 E-Go’s opposition, filed eight days late, says that E-Go did not receive the written 3 discovery that Eagle Eyes claimed it served on January 5, 2022. E-Go submits a declaration by 4 defense counsel stating: “In fact, I did not receive the alleged service by email on January 5, 5 2022. Nor did I receive the first-class mail mentioned in the January 5, 2022 email. I searched my 6 email inbox and the junk email box but I did not find that email therefrom.” ECF No. 41-1, ¶ 5. 7 The declaration states that he received the written discovery by email on April 11, 2022. Id. ¶ 4. 8 The declaration states that counsel expects to serve a written response on Eagle Eyes by June 30, 9 2022. Id. ¶ 13. At the hearing yesterday, E-Go’s counsel stated that he had not yet served 10 responses to the discovery requests. Eagle Eyes’ counsel confirmed she had not received any 11 responses. 12 There is no need to determine whether the January 5 attempt at service was effective 13 because E-Go agreed at the hearing that the April 11 email service was valid. Rule 5(b)(2)(E) 14 authorizes service by “sending it by other electronic means that the person consented to in 15 writing,” and Exhibit 7 to the Eagle Eyes’ declaration sure looks like consent in writing. ECF No. 16 30-1, Ex. 7 (“I received the email with time stamp of April 11, 2022 2:14pm. The attachments of 17 the email are received today. I will send you Defendant’s response on or before 5/10/2022.”). At 18 the hearing E-Go’s counsel stated that this was valid service. And since both sides agree that as of 19 yesterday morning E-Go had not served responses, it follows that E-Go has not served timely 20 responses. 21 E-Go’s explanation for its failure to respond is that the company ceased operations toward 22 the end of last year, and it was difficult for U.S.-based counsel to obtain information from the 23 pertinent former E-Go employee due to Covid lockdown in Shanghai and surrounding cities. ECF 24 No. 41 ¶ 3. That is a reasonable explanation for why it was difficult to produce documents or 25 provide substantive information that counsel did not possess. But it does not constitute an 26 explanation for why U.S. counsel based in Pleasanton, California did not serve written responses 27 and objections. Drafting objections is an exercise of legal judgment under U.S. law, and a 1 So, let’s turn to remedies. As for interrogatories, Rule 33 states that “[a]ny ground not 2 stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed. 3 R. Civ. Proc. 33(b)(4). Here, there was no good cause. Remember: the objection is waived 4 unless the objection is timely. Although U.S. counsel did not likely possess the information 5 needed to substantively answer the rogs, he could have drafted and served timely objections. 6 Rule 34 states that responses to RFPs are due within 30 days after being served, but it 7 doesn’t expressly spell out the consequences if that deadline is missed. However, the Ninth 8 Circuit has explained that “[i]t is well established that a failure to object to discovery requests 9 within the time required constitutes a waiver of any objection.” Richmark Corp. v. Timber Falling 10 Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). Again, while it may have been difficult or 11 impossible for E-Go’s U.S. counsel to obtain and produce the requested documents due to Covid 12 lockdowns in and around Shanghai, that did not interfere with U.S. counsel’s ability to serve any 13 appropriate objections. 14 Rule 36 makes clear that the RFAs are all admitted: “A matter is admitted unless, within 15 30 days after being served, the party to whom the request is directed serves on the requesting party 16 a written answer or objection addressed to the matter and signed by the party or its attorney.” Fed. 17 R. Civ. Proc. 36(a)(3). The RFAs differ in one respect from the rogs and RFPs. As noted above, 18 U.S. counsel could have served timely objections to the rogs and RFPs, but to actually answer the 19 rogs and produce the requested documents did require assistance from someone based in China. 20 That doesn’t seem to be true of the RFAs. Twenty of them ask E-Go to admit allegations in the 21 complaint that E-Go had already denied in the answer it filed on October 18, 2021. ECF No. 10. 22 Two of them ask E-Go to admit that it has no evidence supporting the affirmative defenses it 23 pleaded in that same answer and that all those affirmative defenses are baseless. Assuming E-Go 24 complied with Rule 11 when it filed its answer, its counsel did not need any further information 25 from his client to respond to those RFAs. That leaves RFA 3 (“Admit that YOU have sold or 26 distributed ACCUSED PRODUCTS”). A decent patent lawyer would have noticed that this RFA 27 was vague as to location, that asking about sales outside the U.S. might be objectionable as 1 serve a lack-of-knowledge response as to sales in the U.S. The Court is skeptical that U.S. counsel 2 || needed any information not already on file in this matter to answer these RFAs. Regardless, even 3 if counsel did not feel comfortable substantively answering these RFAs until he could confer with 4 || his client, he still could have served a bunch of objections simply to avoid defaulting. 5 To be clear, the Court’s ruling is not based on technicalities. Despite repeated threats by 6 || Eagle Eyes that it intended to move to compel (see ECF No. 30-1, Exs. 5, 6, 8, 10), 80 days after 7 || E-Go’s counsel acknowledged receipt of the discovery requests, he still had not served any 8 || responses. He didn’t miss the deadline by just a little bit. 9 Finally, we come to Eagle Eyes’ request for sanctions. Civil Local Rule 7-8 states that 10 “(a}]ny motion for sanctions, regardless of the sources of authority involved, must comply with the 11 following” requirements, one of which is that “[t]he motion must be separately filed...” Eagle 12 || Eyes’ request for sanctions does not comply with that rule because it was combined with a motion 13 to compel. 14 Accordingly, the Court orders as follows: 3 15 1. Eagle Eyes’ RFAs 1-23 are admitted. a 16 2. E-Go shall produce all documents responsive to Eagle Eyes’ RFPs 1-26 within 30 days. 3 17 3. E-Go shall provide complete answers, without objections, to Eagle Eyes’ rogs 1-9 |) within 30 days. 19 4. Eagle Eyes’ motion for sanctions is denied without prejudice to refiling it in conformity 20 || with Local Rule 7-8. 21 IT IS SO ORDERED. 22 23 Dated: July 1, 2022 24 LU \ :

THOMAS S. HIXSON

25 United States Magistrate Judge 26 27 28