4WEB, Inc. v. NuVasive, Inc.

7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 4WEB, INC. and 4WEB, LLC, Case No.: 24-cv-1021-JLS-MMP 11 Plaintiffs, ORDER REQUIRING NUVASIVE v. TO FILE SUPPLEMENTAL RESPONSE TO RFP 67 NUVASIVE, INC., 14 Defendant. [ECF No. 250] 17 On August 4, 2025, the Court denied 4WEB’s motion to compel as to RFP 67 without prejudice and ordered NuVasive to (1) provide a declaration under oath confirming after a diligent search and reasonable inquiry, no documents responsive to RFP 67 exist, and (2) supplement its discovery responses to RFP 67 and Interrogatory 23 as agreed in its opposition. ECF No. 233 at 19.

22 On August 19, 2025, NuVasive filed a declaration of Brian Kearns based on his personal knowledge in which he represents, to the best of his knowledge, he is not aware of any documents responsive to RFP 67. ECF No. 250.

25 The Court finds Mr. Kearns’ declaration falls short of NuVasive’s unequivocal representation that “no documents responsive to RFP 67 exist.” ECF No. 164 at 16. See Blackwell v. Climate Pros, LLC, No. 20-cv-1968-KJM-CKD, 2021 WL 4942875, at *2 (E.D. Cal. Oct. 22, 2021) (“The primary purpose of Rule 34(b)(2)’s requirements is to ||eliminate this guesswork—requiring responding parties to clearly state that responsive documents do not exist, have already been produced, or exist but are being withheld based 3 an objection.”) (quotation marks and citation omitted); Rogers v. Giurbino, 288 F.R.D. 4 485 (S.D. Cal. 2012) (“A party must make a reasonable inquiry to determine whether ||responsive documents exist, and if they do not, the party should so state with sufficient || specificity to allow the Court to determine whether the party made a reasonable inquiry ||and exercised due diligence.”) (quotation marks and citation omitted).

8 The Court, however, has not yet reviewed NuVasive’s supplemental discovery ||response. Accordingly, no later than September 2, 2025, the Court ORDERS NuVasive 10 file its supplemental response to RFP 67.

11 IT IS SO ORDERED.

12 Dated: August 29, 2025 “WA vf ly Ny. str 13 HON. MICHELLE M. PETTIT 4 United States Magistrate Judge