ORDER GRANTING IN PART PLAINTIFF'S MOTION TO COMPEL INTERROGATORY RESPONSES

[ECF No. 81]

LINDA LOPEZ, Magistrate Judge.

Currently before the Court is Plaintiff's Motion to Compel responses to three Interrogatories [ECF No. 81 ("Mot.")], Defendant MillerCoors LLC's Opposition [ECF No. 82 ("Oppo.")], and Plaintiff's Reply [ECF No. 83 ("Reply")]. For the reasons set forth below, Plaintiff's motion is GRANTED IN PART.

RELEVANT PROCEDURAL HISTORY

On February 12, 2018, Plaintiff filed a complaint against Defendants alleging the following claims: (1) federal trademark infringement, 15 U.S.C. § 1114; (2) false designation of origin, 15 U.S.C. § 1125(a); (3) trademark dilution, 15 U.S.C. § 1125(c); (4) trademark dilution, Cal. Bus & Prof. Code § 14247 et seq.; (5) unfair competition, Cal. Bus. & Prof. Code § 17200 et seq.; and (6) declaratory judgment, 28 U.S.C. §§ 2201-2202. ECF No. 1. Specifically, Plaintiff alleges that when Defendants rebranded their Keystone beers in April 2017 as "STONE" by formulating new cans, boxes, and logos to emphasize "STONE" as a primary mark, it deliberately infringed on Plaintiff's incontestable trademark STONE® in order "to not only diminish Stone's trademark rights but to capitalize upon STONE®'s artisanal reputation and image." Id. at 6, 11, 18.

On April 10, 2018, Defendant MillerCoors LLC (hereinafter "Defendant") filed an answer and counterclaims. ECF No. 19. The counterclaims allege the following claims: (1) declaratory judgment of Defendant's right to use STONE and STONES to advertise Keystone Beer; (2) declaratory judgment of unenforceability of the STONE mark against Defendant due to laches; (3) declaratory judgment of non-infringement; and (4) declaratory judgment of Defendant's exclusive right to use the Stone mark in the United States. Id. at 24-28.

On April 17, 2018, District Judge Roger T. Benitez issued an order granting the joint stipulated dismissal of Defendant Molson Coors Brewing Company. ECF No. 23. Molson Coors is a holding company and Defendant MillerCoors LLC is one of its direct subsidiaries. ECF No. 21-1 at 1.

RELEVANT DISCOVERY AND FACTUAL BACKGROUND

On September 26, 2018, Plaintiff propounded Interrogatories, Set One, to Defendant, which included Interrogatories Nos. 1 through 11. ECF No. 81-1 (Mot., Exh. 1). On October 26, 2018, Defendant provided objections and responses. Mot. at 3; Oppo. at 3. The parties met and conferred regarding Interrogatories Nos. 8, 10 and 11, and Defendant provided supplemental responses on February 19, 2019 and March 1, 2019. ECF No. 81-2 (Mot., Exh. 2) at 6-13; Oppo. at 5.

On February 27, 2019, counsel for Plaintiff and counsel for Defendant jointly contacted the Court after meet and confer efforts regarding discovery disputes failed. ECF No. 80. After a follow-up conference call on February 28, 2019, the Court issued a briefing schedule. Id. The parties timely filed the motion, opposition, and reply in accordance with the schedule. See Mot., Oppo., Reply.

LEGAL STANDARD

The scope of discovery under the Federal Rules of Civil Procedure is defined as follows:

Fed. R. Civ. P. 26(b)(1).

District courts have broad discretion to determine relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). District courts also have broad discretion to limit discovery to prevent its abuse. See Fed. R. Civ. P. 26(b)(2) (instructing that courts must limit discovery where the party seeking the discovery "has had ample opportunity to obtain the information by discovery in the action" or where the proposed discovery is "unreasonably cumulative or duplicative," "obtain[able] from some other source that is more convenient, less burdensome, or less expensive," or where it "is outside the scope permitted by Rule 26(b)(1)").

Pursuant to Federal Rule of Civil Procedure 37, "a party may move for an order compelling disclosure of discovery." Fed. R. Civ. P. 37(a)(1). The party seeking to compel discovery has the burden of establishing that its request satisfies the relevance requirement of Rule 26. Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995). Thereafter, the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of "clarifying, explaining and supporting its objections." DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).

An interrogatory may relate to any matter that may be inquired under Rule 26(b). Fed. R. Civ. P. 33(a)(2). "The grounds for objecting to an interrogatory must be stated with specificity, [and] [a]ny ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure." Fed. R. Civ. P. 33(b)(4). "Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath." Fed. R. Civ. P. 33(b)(3). Responses to interrogatories must be verified. Fed. R. Civ. P. 33(b)(5) ("The person who makes the answers must sign them, and the attorney who objects must sign any objections.").

DISCUSSION

Plaintiff seeks an order from the Court compelling Defendant to provide complete responses to Interrogatories ("ROGs") Nos. 8, 10, and 11. See Mot.

A. ROGs Nos. 8 and 10

ROGs Nos. 8 and 10 requests the following:

ECF No. 81-2 (Mot. at Exh. 2) at 6, 9.

Defendant responded initially and supplemented twice to each as follows:

Id. at 6-7.

Id. at 9-11.

In its Motion, Plaintiff argues that Defendant's responses are evasive, incomplete, and non-responsive because (1) Defendant has "refused to identify any third parties in response to ROG No. 8 and nothing other than the names of Stone subpoena recipients in response to ROG No. 10"; (2) Defendant has never purported to provide a complete list of third parties with whom it has communicated regarding Stone pursuant to ROG No. 8, nor the communications themselves pursuant to ROG No. 10; (3) Defendant's responses leave open the possibility that Defendant is withholding privileged communications without including them in a privilege log, or withholding communications with third parties improperly as privileged and not including them in a privilege log; (4) Defendant's responses are "demonstrably untrue and incomplete" because Defendant's expert report in its opposition to Plaintiff's motion for preliminary injunction and documents produced in discovery show Defendant "commissioned third-party market research from Nielsen regarding the movement of customers between Keystone and Stone Brewing's beers," but failed to identify Nielsen pursuant to ROG No. 8 or disclose communications with Nielsen; pursuant to ROG No. 10; and (5) Defendant improperly responds to ROG No. 8 by merely incorporating Defendant's responses to ROGs Nos. 9 and 10 because an answer to a ROG should be complete in itself without references, "at least where such references make it impossible to determine whether an adequate answer [has] been given without an elaborate comparison of answers." Mot. at 5-7.

In its Opposition, Defendant argues that (1) it has answered ROGs Nos. 8 and 10 by "identifying discoverable communications with third parties about Stone Brewing that it has been able to identify to date"; (2) Defendant's communications with Nielsen were properly omitted per the parties' stipulation that post-litigation privileged communications do not need to be logged on a privilege log because the communications were "undertaken to assist MillerCoors' attorneys in the preparation of their defense of this case" and "are unquestionably protected as attorney-work product";1 and (3) Defendant's response to ROG No. 8 appropriately incorporated its response to ROG No. 10 because "the information in its response to [ROG No. 10] is the only discoverable information of which MillerCoors is aware that is responsive to [ROG No. 8]" and its answer had not made "it impossible to determine whether an adequate answer [has] been given without an elaborate comparison of answers." Oppo. at 6-7.

In its Reply, Plaintiff argues that Defendant fails to provide a definitive response to ROGs Nos. 8 and 10 and is hedging by stating that it has identified the "discoverable communications with third parties about Stone Brewing." Reply at 3. Plaintiff contends that pre-litigation privileged communications must be disclosed on a privilege log and not withheld as not "discoverable." Id. at 3-4. Plaintiff argues that emails between Defendant and third parties about Plaintiff would be responsive to ROGs Nos. 8 and 10, and that it is "implausible that MillerCoors has a complete absence of emails regarding Stone Brewing — as MillerCoors would like the Court to believe (but is careful not to state unequivocally)" because (1) Plaintiff's STONE® mark had been the basis for the PTO's rejection of Defendant's prior attempt to register "HOLD MY `STONES"; and (2) Defendant's in-house bloggers regularly write about Plaintiff on Defendant's website, including pre-litigation. Id.

Plaintiff's motion to compel complete responses to ROGs Nos. 8 and 10 are GRANTED IN PART. Defendant must clearly and unequivocally respond that it has provided a complete response to ROGs Nos. 8 and 10. If Defendant is withholding information from privileged pre-litigation communications, Defendant must include the requisite information in a privilege log so that Plaintiff may fairly consider the appropriateness of the privilege. The Court also finds the plain language of Federal Rule of Civil Procedure 33(b)(3) to be clear that "[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath" and thus directs Defendant to answer accordingly, without incorporating by reference its answers to other ROGs. Plaintiff's motion is DENIED to the extent Plaintiff disagrees with the accuracy of Defendant's responses. Although Plaintiff provides reasonable arguments for doubting the absence of responsive emails, the Court cannot compel Defendant to provide "better" responses if Defendant stands by the accuracy of the responses. Nutrition Distribution LLC v. PEP Research, LLC, 16cv2328-WQH (BLM), 2018 WL 1245052, at *9 (S.D. Cal March 9, 2018). The Court notes that Defendant's responses to the ROGs do not contain a verification page. See ECF No. 81-2 (Mot. at Exh. 2). Defendant must sign and date its responses—and amended or supplemental responses— to the ROGs under penalty of perjury. See Fed. R. Civ. P. 33(b)(5).

B. ROG No. 11

ROG No. 11 states the following:

Defendant responded initially and then supplemented twice as follows:

ECF No. 81-2 (Mot. at Exh. 2) at 11-13.

In its Motion, Plaintiff argues that it is asking Defendant to identify employees of its parent company, Molson Coors, who were involved in or aware of the 2017 Keystone Rebrand because "[w]hat MillerCoors said and to whom about the 2017 Rebrand is highly relevant evidence of MillerCoors's purposes, intentions, and expectations in rebranding Keystone beer as STONE®." Mot. at 8. Plaintiff contends that Molson Coors's SEC filings publicly previewed the Keystone Rebrand prior to its launch, so "[s]omeone at MillerCoors reported to someone at the parent company in some detail regarding the Rebrand before it was launched," and these "communications are likely to reveal much about the development and intent of the 2017 Rebrand." Mot. at 9. Plaintiff argues that "a subsidiary is required to produce information in the possession of its parent when it can access that information." Id.

In its Opposition, Defendant argues that it has answered ROG No. 11 by stating that Molson Coors was not "involved" with updating the 2017 Keystone packaging and marketing and "never evaluated or approved any Keystone brand packing, marketing, or advertising." Oppo. at 8. Defendant further argues that before the filing of Molson Coors' 10-K report, Defendant had "publicly announced the same basic information at least four months earlier in October 2016." Id. Defendant thus objects to the relevance and burden of identifying all employees at another company who were "aware" of a public marketing campaign. Id. at 8-9. Defendant also argues that Plaintiff should have followed up with its subpoena to Molson Coors that sought, inter alia, this same information. Id. at 9. Molson Coors objected to the requests and invited Plaintiff to meet and confer, but Plaintiff "has yet to contact Molson Coors," which Defendant argues "demonstrates that the information is not actually relevant" or critical. Id.

In its Reply, Plaintiff argues that ROG No. 11 asks who at Molson Coors was aware of the 2017 Keystone Rebrand, and that Defendant does not "deny that Molson Coors was informed of the plan, rationale, and expected results of the Rebrand," nor did Defendant deny providing this information to Molson Coors. Reply at 5. Plaintiff states its doubts that Molson Coors learned of its subsidiary's rebrand of a major product line through public news reports, but contends that even if that was the case, ROG No. 11 "asks who at Molson Coors was aware of the 2017 Rebrand, including through communications with MillerCoors." Id. at 5-6. Plaintiff also states that Defendant is the proper party to respond to ROG No. 11 because it is a party to the litigation and that Molson Coors refused to provide material to Plaintiff "on the grounds that `[Plaintiff] has not demonstrated why it cannot obtain the information from MillerCoors LLC, a party to this lawsuit.'" Id. at 6. Plaintiff contends that the information sought is readily available to Defendant by, for instance, "determining who at MillerCoors communicated with Molson Coors about the Rebrand." Id. at 5.

Plaintiff's motion to compel Defendant's response to ROG No. 11 is GRANTED IN PART. The Court finds the information sought—the identity of anyone at Defendant's parent company who was aware of Defendant's 2017 update of Keystone marketing and his/her role regarding it—is relevant to Plaintiff's claim of deliberate trademark infringement. See Plasticolor Molded Products v. Ford Motor Co., 698 F.Supp. 199, 201 (C.D. Cal 1988) (finding that the legal test for trademark infringement is likelihood of confusion and that although a showing of wrongful intent on the part of the alleged infringer is not required, "proof of such intent does, however, raise a presumption that confusion is likely" (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 314 F.2d 149, 157-58 (9th Cir. 1963)). However, the Court finds that Plaintiff's request is overbroad to the extent that it does not impose temporal limits. The Court agrees with Defendant's interpretation of the temporal limit as being the time period of the development and implementation of the 2017 update, prior to the actual launch. Accordingly, the Court finds Defendant's response is insufficient; Defendant must answer by seeking and providing the requested information for the time period of the development and implementation of the 2017 update of Keystone marketing and packaging, prior to the update's launch.

CONCLUSION

Plaintiff's motion to compel responses to ROGs Nos. 8, 10, and 11 is GRANTED IN PART and Defendant must supplement or amend its responses on or before April 19, 2019. Defendant must sign and date its interrogatory responses and any supplemental or amended responses on or before April 19, 2019.

IT IS SO ORDERED.