Bob Barker Co. v. Ferguson Safety Prods., Inc., 2006 WL 648674 (N.D. Cal. Mar. 9, 2006)
In this action for Lanham Act violations and related claims, the plaintiff moved to compel defendants to produce further documents in response to requests seeking various financial information. The defendants contended that the requests were overbroad and that, as a small business operation, they did not maintain many of the kinds of records sought.
The court concluded that many of the requests were overbroad, but also found that some of defendants’ responses were too ambiguous to permit the plaintiff or the Court to determine the extent to which it may be withholding responsive documents based on its objections rather than asserting that no responsive documents exist. The court ruled:
Accordingly, while nothing in this order requires Ferguson to produce what it does not have, where this order compels a further response to a request, Ferguson must either produce all documents responsive to the request (as limited by this order), or serve a further response plainly and unequivocally stating that no documents exist in its possession, custody, or control that are responsive to that specific request.
The court went on to discuss the specific requests. One request sought all “financial software databases utilized in the operation of the business.” The court observed that, from the defendants’ responses, it appeared that defendants did not have any such software. It continued:
Assuming that Ferguson does have some form of financial database software, however, no further production specific to this request need be made, because it is unclear how a party could go about producing “a database,” which ordinarily is a dynamic collection of data that changes over time. BBC’s other requests for various reports and data are broad enough to require Ferguson to produce any data that may now exist, regardless of whether it was ever maintained in a “financial software database.” Thus, Ferguson may not withhold any documents (including electronic documents) that are responsive to any other request simply because they were created by or exist in a financial database program, but it need not produce documents specifically under this request.
Additionally, at the hearing, BBC raised the concept of permitting its expert direct access to whatever database software Ferguson may have, so that he or she could directly generate reports containing the information BBC contends it needs, even if Ferguson does not presently have such reports in its possession. While permitting such an intrusive procedure might be warranted in some cases upon an adequate showing of need, and with adequate procedural safeguards in place to minimize business disruption and to restrict disclosure of irrelevant or proprietary material, it would be premature to authorize such a procedure here. If, after reviewing the responses Ferguson provides in response to this order, BBC believes good cause exists to permit its expert to have direct access to any such database, BBC may seek such access by making an adequate showing of why it is necessary, and by proposing a procedure containing adequate safeguards to protect Ferguson’s interests.