Burgos v. Sunvalleytek International, Inc.

1 KAPLAN FOX & KILSHEIMER LLP GCA LAW PARTNERS LLP Laurence D. King (SBN 206423) Kimberly A. Donovan (SBN 160729) [email protected] [email protected] Mario M. Choi (SBN 243409) Robert Andris (SBN 130290) [email protected] [email protected] Sansome Street, Suite 400 Valerie M. Wagner (SBN 173146) San Francisco, CA 94116 [email protected] Telephone: (415) 772-4700 2570 W. El Camino Real, Suite 400 Facsimile: (415) 772- 4707 Mountain View, CA 94040 Telephone: (650) 428-3900 FINKELSTEIN, BLANKINSHIP, Facsimile: (650) 428-3901 FREI-PEARSON & GARBER, LLP D. Greg Blankinship (pro hac vice) Attorneys for Defendant [email protected] 445 Hamilton Ave, Suite 605 White Plains, New York 10601 Telephone: (914) 298-3290 Facsimile: (914) 522-5561 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION INES BURGOS and MONGKOL Case Number: 4:18-cv-06910-HSG MAHAVONGTRAKUL, individually and on 16 STIPULATION AND ORDER behalf of other similarly situated individuals, REQUESTING EXTENSION OF 17 DEADLINE TO CONDUCT FACT Plaintiffs, DISCOVERY (as modified) vs. SUNVALLEYTEK INTERNATIONAL, INC., Defendant.

1 Pursuant to the Standing Order For Civil Cases Before District Judge Haywood S.

2 Gilliam, Jr., Plaintiffs Ines Burgos and Mongkol Mahavongrakul (“Plaintiffs”) and Defendant Sunvalleytek International, Inc. (“Sunvalleytek” or “Defendant”) (collectively, “the Parties”), hereby jointly submit this statement and request for a two-month extension of the close of fact discovery and all other deadlines.

6 I. PROCEDURAL HISTORY AND SCHEDULING 7 The Court entered the Order Setting Case Schedule on February 22, 2019. Dkt. No. 29 (“Scheduling Order”). Pursuant to the Scheduling Order, fact discovery closes on December 13, 2019. Id. The Scheduling Order covers all dates up until the Class Certification Hearing, which is presently scheduled for May 7, 2020 at 2:00 p.m.

11 Since the Court issued the Scheduling Order, the Parties have engaged in diligent and good faith discovery. The Parties nevertheless anticipate that they will require an additional two months to complete fact discovery. In particular, discovery will need to be obtained from Amazon.com, Inc. (“Amazon”) (where the vast majority of Defendant’s sales occur), documents and information are being obtained from entities in China, and the Parties are negotiating and finalizing a stipulation in order to reduce issues to be addressed by the Court and eliminate the need for certain discovery.

17 Although Plaintiff has already taken a deposition, both parties need to take additional depositions and Plaintiff will not be able to take further depositions of Defendant’s personnel until after Defendant completes its forthcoming ESI production and until documents have been received from Amazon, as further discussed below. Therefore, the Parties have agreed to and jointly request that the Court grant a two-month extension of deadlines.

22 II. GOOD CAUSE EXISTS TO EXTEND THE FACT DISCOVERY DEADLINE 23 Rule 16 of the Federal Rules of Civil Procedure provides that deadlines established in a case management order may “be modified only for good cause.” “Good cause” exists when a deadline “cannot reasonably be met despite the diligence of the party seeking the extension.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (citation omitted). “Rule 16(b)'s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Id.; see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).

1 Here, good cause exists to amend the current schedule. The Parties have been diligent in pursuing discovery. Both parties have issued interrogatories and requests for production, and both parties produced documents and have worked together to proceed with discovery. The Parties agreed on a protective order and an ESI protocol. The Parties recognized certain challenges with discovery, since many relevant documents relating to the products at issue are located in China and/or are in the hands of third parties, including Amazon. The Parties explored a variety of methods to try to address these challenges. They met and conferred, pursued cooperative production of some documents in the hands of third parties, and utilized other agreed upon other methods to resolve disputes. In order to address certain issues, the Parties negotiated and agreed upon terms of a stipulation that will ultimately narrow the issues to be addressed by the Court and reduce the scope of discovery required, particularly by removing the need for production of a wide range of technical documents located in China, including in the hands of third parties. Defendant is still in the process of compiling and producing cost related documents, some of which require production of documents from entities in China.

15 Electronically stored documents have also posed a number of challenges. Even though the Defendant’s custodians of the emails the Parties have agreed would be searched are located in the United States, the administrators for many of those email accounts are located in China. The Parties have agreed upon approximately forty ESI custodians whose files and data will be searched and agreed upon ESI search terms to be applied to those accounts. Defendant has worked with an ESI vendor. The vendor has pulled data from the custodians, and it is working on application of the search terms to the data in order to provide the emails. Due to the volume of emails, the Parties anticipate they will need to work together to potentially modify searches and potentially customize them within certain very voluminous accounts in order to have reasonably reviewable results. The Parties are pursuing that process.

25 The Parties have also encountered a number of challenges in obtaining electronic or otherwise usable copies of the Amazon listings for the numerous products involved in this matter, as well as the consumer reviews, questions, and answers displayed on the Amazon website for Defendant’s products. Defendant estimates that well over 95% of its power bank products at issue in this case are sold via Amazon.com. Defendant’s ESI vendor thought it could write a script to obtain electronic copies of the landing pages and other information associated with Defendant’s power bank products, but the vendor was not able to do so. Several other methods were explored but turned out to be unproductive and/or in violation of Amazon’s seller agreements. Defendant ended up producing what it could and then serving a subpoena on Amazon.com to obtain the information that both parties need in order to pursue this case. Defendant is attempting to address the subpoena with Amazon but it is not clear when those records will be received or the format in which they will be provided.

9 Although Plaintiffs have taken a Rule 30(b)(6) deposition in which they explored some areas, Plaintiffs need to receive ESI, specifically including the emails, the information described above from Amazon.com, and all of the remaining cost related information in order to determine the remaining depositions to be taken in this case.

13 Despite the Parties having been diligent, however, it is clear that they will not be able to complete fact discovery by the December 13 deadline and, in turn, will not be able to adequately prepare for expert discovery and class certification briefing without a short extension of those dates.

16 III. REQUESTED EXTENSION 17 The Parties respectfully request that the Court extend the following case deadlines as follows: 19 ACTION/EVENT CURRENT DATE REQUESTED DATE Factual Discovery Deadline: December 13, 2019 February 13, 2019 21 Motion for Class Certification Due: January 17, 2020 March 17, 2020 Initial Expert Disclosures Due: January 17, 2020 March 17, 2020 22 Deadline to Depose Plaintiffs’ Experts: January 31, 2020 March 31, 2020 Opposition to Class Certification Due: March 6, 2020 May 6, 2020 23 Defendant’s Expert Disclosures Due: March 6, 2020 May 6, 2020 Deadline to Depose Defendant’s Experts: March 20, 2020 May 20, 2020 Class Certification Reply Brief Due: April 3, 2020 June 3, 2020 25 Class Certification Hearing: May 7, 2020 at 2:00 July 9, 2020 at 2:00 p.m. p.m.

27 / / / / / / 1 IT IS SO STIPULATED, through Counsel of Record.

2 DATED: November 18, 2019 KAPLAN FOX & KILSHEIMER LLP 3 By: /s/ Mario M Choi Mario M. Choi Laurence D. King (SBN 206423) 5 [email protected] Mario M. Choi (SBN 243409) 6 [email protected] Sansome Street, Suite 400 7 San Francisco, CA 94116 Telephone: (415) 772-4700 8 Facsimile: (415) 772- 4707 DATED: November 18, 2019 FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP By: /s/ D. Greg Blankinship 11 D.Greg Blankinship 12 D. Greg Blankinship (pro hac vice) [email protected] 13 445 Hamilton Ave, Suite 605 White Plains, New York 10601 14 Telephone: (914) 298-3290 Facsimile: (914) 522-5561 Attorneys for Plaintiffs DATED: November 18, 2019 GCA LAW PARTNERS, LLP 18 By: /s/ Kimberly A. Donovan Kimberly A. Donovan Kimberly A. Donovan (SBN 160729) 20 [email protected] Robert Andris (SBN 130290) 21 [email protected] Valerie M. Wagner (SBN. 173146) 22 [email protected] 2570 W. El Camino Real, Suite 400 23 Mountain View, CA 94040 Telephone: (650) 428-3900 24 Facsimile: (650) 428-3901 25 Attorneys for Defendant 1 ATTESTATION PURSUANT TO CIVIL LOCAL RULE 5-1(i)(3) I, Mario M. Choi, attest that concurrence in the filing of this document has been obtained from the other signatories. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed this 18th day of November 2019, at San Francisco, California.

7 /s/ Mario M. Choi Mario M. Choi 1 ORDER 2 IT IS HEREBY ORDERED that Plaintiffs Ines Burgos and Mongkol Mahavongrakul || (‘Plaintiffs’) and Defendant Sunvalleytek International, Inc’s. (‘Sunvalleytek” or “Defendant’”) || (collectively, “the Parties’), request for a two-month extension of the close of fact discovery and all || other deadlines is GRANTED. Accordingly, the following scheduling dates are amended: 7 ACTION/EVENT NEW DATE g Factual Discovery Deadline: February 13, 2020 Motion for Class Certification Due: March 17, 2020 9 Initial Expert Disclosures Due: March 17, 2020 Deadline to Depose Plaintiffs’ Experts: March 31, 2020 10 Opposition to Class Certification Due: May 6, 2020 Defendant’s Expert Disclosures Due: May 6, 2020 Deadline to Depose Defendant’s Experts: May 20, 2020 12 Class Certification Reply Brief Due: June 3, 2020 Class Certification Hearing: July 9, 2020 at 2:00 p.m.

14 SO ORDERED.

16 || DATED: 11/20/2019 Aepurl 3 Mb) Honorabl@ Haywood S. Gilliam, Jr. 17 United States District Judge -6- Case No. 4:18-cv-06910-HSG Cammrostr ATIMAT ARTE CinMOnNn YNrmrmmamawm Oxmranararmrmat mr Damm Tara mmtmnx7 TArm 4 mmm