ORDER GRANTING-IN-PART MOTION TO COMPEL (Re: Docket No. 131)

PAUL S. GREWAL, Magistrate Judge.

Before the court is a motion by Defendant FCA US LLC, formerly known as Chrysler Group LLC, to compel responses to certain interrogatories and produce certain documents.1 Chrysler's motion is GRANTED, but only IN-PART. All discovery ordered below must be completed within 21 days.

I.

Plaintiff Mathew Enterprise, Inc. operates and does business as Stevens Creek Chrysler Jeep Dodge Ram, a car dealership in San Jose that buys and resells vehicles from Chrysler.2 Stevens Creek alleges that Chrysler denied it access to so-called volume growth incentives, even as Chrysler made those incentives available to competing dealerships in the area.3 According to Stevens Creek, the competing dealerships that did receive these incentives effectively paid lower prices to Chrysler for vehicles of like grade and quality, and these differences were reflected in the prices offered to customers.4 Stevens Creek alleges that the result was price discrimination in violation of the Robinson-Patman Act.5

II.

This court has jurisdiction under 28 U.S.C. §§ 1332, 1337 and 1367. The undersigned was assigned discovery matters in this case pursuant to Fed. R. Civ. P. 72(a).

The Federal Rules of Civil Procedure provide that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense."6 This discovery must be "proportional to the needs of the case."7 Relevant factors include "the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit."8 "Once the moving party establishes that the information requested is within the scope of permissible discovery, the burden shifts to the party opposing discovery."9 "An opposing party can meet its burden by demonstrating that the information is being sought to delay bringing the case to trial, to embarrass or harass, is irrelevant or privileged, or that the person seeking discovery fails to show need for the information."10

III.

As an initial matter, the court rules on Chrysler's requests to compel responses to interrogatories as follows:

Chrysler also moves to compel Stevens Creek to produce additional electronically stored information, including emails from employees' corporate Gmail accounts and financial documents. Chrysler notes three general problems with what Stevens Creek has produced. First, there are significant time gaps. Stevens Creek alleges that the price discrimination occurred between July 1, 2012 and June 30, 2013.28 However, in response to Chrysler's request for documents "relating to any communications with any actual or potential customer,"29 Stevens Creek has produced as few as three emails from the relevant period. Second, Chrysler claims that Stevens Creek used inadequate search parameters in its effort to locate responsive emails. Stevens Creek did not provide its employees with a copy of Chrysler's requests; nor did it provide any meaningful direction on how to identify the requested emails.30 Third, Chrysler says that Stevens Creek has not asked all the relevant custodians to search for documents. In particular, Stevens Creek asserts that it need not produce documents from non-sales employees, even though Chrysler has asked for a broader set of financial documents.31

Stevens Creek has failed to "show that the information [requested] is not reasonably accessible because of undue burden or cost."32 It argues that it already has undertaken reasonable efforts in good faith to comply with Chrysler's requests for production, but the evidence that Chrysler has provided suggests otherwise. Stevens Creek must search for and produce documents from the period of alleged price discrimination and not just from the following years. It must coordinate the search for documents properly by telling its employees exactly what Chrysler has asked for and suggesting a broader set of search terms.33 And it must ask all of its salespeople and all other employees who may have relevant documents to cooperate with the search. Chrysler's motion to compel production of these documents is GRANTED.

Chrysler also moves to compel Stevens Creek to produce emails from the personal accounts of Stevens Creek employees and from Stevens Creek's customer communications database. Because Stevens Creek does not furnish all its employees with email accounts, many of them use their personal accounts for business purposes.34 Stevens Creek argues that these accounts are outside its "possession, custody, or control,"35 so they are beyond the scope of party discovery. Similarly, because an outside vendor, AVV, maintains and operates Stevens Creek's customer communications database, Stevens Creek contends that those communications cannot be discovered either. Chrysler responds that Stevens Creek still has control over its company information, whether it is stored in personal email accounts or in a vendor's database.

What does it mean for a party to have control over data like the data disputed here? "Control is defined as the legal right to obtain documents upon demand."36 Like the majority of circuits, the Ninth Circuit has explicitly rejected an invitation "to define `control' in a manner that focuses on the party's practical ability to obtain the requested documents."37 Documents are not discoverable under Rule 34 if the entity that holds them "could legally—and without breaching any contract—continue to refuse to turn over such documents."38 "The party seeking production of the documents . . . bears the burden of proving that the opposing party has such control."39

Chrysler has not carried this burden for the emails in personal accounts. Chrysler points to a Stevens Creek employee handbook that instructs employees to keep "internal information" in the "sole possession" of Stevens Creek,40 but this is not a contract and so does not create a legal right for Stevens Creek to take back any such information now stored in personal accounts.41 And as Stevens Creek pointed out at the hearing on this motion, even if the court were to order that Stevens Creek collect emails from its employees' personal accounts, Chrysler has not identified any authority under which Stevens Creek could force employees to turn them over. The Ninth Circuit has recognized that "[o]rdering a party to produce documents that it does not have the legal right to obtain will oftentimes be futile, precisely because the party has no certain way of getting those documents."42 That is the case here.43 The motion to compel production from employees' personal email accounts is DENIED.44

The AVV database is different.45 Although the contract that governs Stevens Creek's relationship with AVV is not before the court, Stevens Creek clearly has access to information from the AVV database that Stevens Creek pays AVV to maintain.46 In fact, Stevens Creek already did "go to AVV and ask them to do a special production generation" of certain data,47 but the data produced was not from the relevant time period. Furthermore, days before the hearing on this motion—and weeks after the motion was filed—Stevens Creek asked AVV to produce the information that Chrysler seeks here. Stevens Creek argues that Chrysler should have to subpoena information from AVV directly, but the burden of a non-party subpoena is unnecessary when the information sought lies within Stevens Creek's legal control.48 Chrysler's motion with respect to the documents in the AVV database is GRANTED.

Finally, Chrysler asks the court to compel Stevens Creek to respond to Chrysler's Yelp-related discovery requests.49 Stevens Creek does not oppose.50 Chrysler's motion is GRANTED with respect to these inquiries.

SO ORDERED.