Judge Fallon made an opinion public today that deals with whether a plaintiff can get discovery on unlaunched, abandoned, and future products in the lead up to a preliminary injunction hearing. The Court held that discovery on those products was not proportional to the needs of the case:
Zwift has shown that the document discovery requested by Wahoo is not proportional to the needs of the case at this stage of the proceedings. (D.I. 72) The complaint establishes that Wahoo was aware of Zwift’s unlaunched and abandoned hardware products, yet it did not raise these products in its motion for a preliminary injunction, indicating that the relevance of the requested discovery to the preliminary injunction inquiry is limited. . . . The testimony of Zwift’s 30(b)(6) designee confirms that a complete document production on Zwift’s two unlaunched or abandoned bicycle trainers would be extensive and burdensome because the projects involved many employees in various capacities over a significant length of time. . . . And the court cannot discern any deficiencies or gaps in the testimony provided by Zwift’s 30(b)(6) designee on the subjects of unlaunched, abandoned, and future products. . . . On this record, the court finds that expanding the scope of discovery on Zwift’s unlaunched, abandoned, and future products to include a document production in addition to the existing 30(b)(6) testimony would not be proportional in the context of the upcoming preliminary injunction hearing.
It's interesting that the Court framed it as not proportional "in the context of the upcoming preliminary injunction hearing," suggesting that plaintiff may be entitled to that discovery after the preliminary injunction stage—although the Court didn't indicate how the analysis would change.
The Court recognized that even though it would be disproportionately burdensome for the defendant to have to collect and produce information about unreleased, abandoned, and future products (at least in the preliminary injunction context), it cannot redact information about those products from otherwise responsive documents:
Wahoo also moves to compel Zwift to remove redactions included in its document production served on February 17, 2023, to the extent that those redactions relate to Zwift’s unlaunched, abandoned, and future products. . . . According to Wahoo, these redactions were not identified as privilege-related redactions, and Zwift confirmed that it redacted information on “non-accused products” on relevance grounds. . . .
Wahoo’s motion to compel Zwift to remove redactions relating to its unlaunched, abandoned, or future products from previously produced, nonprivileged documents is GRANTED. Zwift’s arguments on burden and proportionality do not logically extend to documents which it already produced, and Zwift’s 30(b)(6) testimony on this subject matter has negated the reasons for redacting the material in the first instance.
This is consistent with other times where the Court has held that relevancy redactions are not a thing.
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