Commercial Litigation and Arbitration

Discovery — Fact That Documents Are Publicly Available Is No Defense to Production of Documents Possessed, But There Is No Duty to Obtain Unpossessed, Publicly Available Documents for Production (What About Work Product?)

Todd v. Tempur-Sealy Int’l, Inc., 2014 U.S. Dist. LEXIS 161037 (N.D. Cal. Nov. 17, 2014):


Plaintiffs' initial Complaint, filed on October 25, 2013, and operative Second Amended Complaint, filed on August 29, 2014, allege misrepresentations and omissions by Defendants Tempur-Sealy International, Inc. and Tempur-Pedic North America, LLC that their mattresses and pillows were "formaldehyde free," "free of harmful [volatile organic compounds ("VOCs")]," had only a "slight odor" that would last a "few days," and were "hypoallergenic." ECF Nos. 1, 63, 79. The Court entered a Stipulated Protective Order in this case on September 16, 2014. ECF No. 68. The parties represent that [*3]  they have attempted to resolve all discovery disputes without the Court's intervention, but that they are unable to resolve these remaining issues. ECF No. 79 at 2.


A. Website and Social Media Pages

Plaintiffs seek historical versions of Defendants' website and social media pages dating from January 1, 2003, that refer to or mention whether Defendants' mattresses and pillows contain VOCs like formaldehyde, emit odors, off-gas, contain allergens, are hypoallergenic, or are otherwise safe. ECF No. 79 at 2. Plaintiffs argue that these materials relate to their core allegations in the case and that Defendants should have to produce the information so that there is no question as to its genuineness. Id. at 2-3. Defendants state that they are producing "copies of prior web pages in their possession obtained from internet archive sites, and information or communications from consumers received through its [sic] web and social media pages in Tempur-Pedic's possession that are not visible or obtainable by the public." Id. at 3. But Defendants maintain that they "do not maintain a historical archive of web or social media pages," and that Plaintiffs should bear the burden of locating relevant information [*4]  to the extent that it is currently displayed on an active webpage or is available in archives or other locations maintained by non-parties unrelated to Defendants.

Under Federal Rule of Civil Procedure 34(a)(1), Defendants must produce documents in their "possession, custody, or control." "Control is defined as the legal right to obtain documents on demand." HTC Corp. v. Tech. Properties Ltd., No. 08-cv-00882-JF (HRL), 2011 WL 97787, at *3 (N.D. Cal. Jan. 12, 2011) (quoting In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999)).

As defendants apparently acknowledge, they must produce responsive documents currently in their possession and information that is not available to the public. ECF No. 79 at 3, but they must also produce any information in their possession, custody or control even it is also publicly available. Regal Elecs, Inc. v. Pulse Eng'g, Inc., No. 03-cv-1296-JW (RS), 2005 WL 3078983, at *3 (N.D. Cal. Nov. 16, 2005) ("Rule 34, however, does not excuse Regal from providing documents in its possession or control, solely because the information is also publicly available."); Plumbers & Pipefitters Local 572 Pension Fund v. Cisco Sys., Inc., No. 01-cv-20418-JW, 2005 WL 1459555, at *6 (N.D. Cal. June 21, 2005) ("It is not usually a ground for objection that the information is equally available to the interrogator or is a matter of public record." (quoting St. Paul Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 513 (N.D. Iowa 2000))).

Defendants are correct, however, that they are not required to survey internet archives [*5]  to produce documents not currently in their possession that are equally available to Plaintiffs. Estate of Young v. Holmes, 134 F.R.D. 291, 294 (D. Nev. 1991) (Plaintiff did not have "control" of articles he had sold to the New York Post where he could not command release of the documents and the Defendant could secure copies of the requested documents as readily as the Plaintiff).

Defendants are therefore ordered to produce all responsive documents in their possession, custody, or exclusive control, regardless of whether they are publicly available.

How exactly does this tie to work product protection if counsel surveys the Internet or the Wayback Machine to prosecute or defend the case and finds things he or she has no interest in proffering?


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