Coles v. Nyko Technologies, Inc.

Citations: 247 F.R.D. 589; 2007 WL 4246090Docket: No. CV 07-2977-FMC(RCx)

Court: District Court, C.D. California; November 26, 2007; Federal District Court

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The court order grants Nyko Technologies, Inc.'s motion to compel the production of plaintiff Sean Coles' Intercooler 360 and Xbox 360 for inspection and testing. This motion was filed on November 7, 2007, along with supporting documents, and followed by a supplemental memorandum and declaration. The case involves an amended class action complaint filed by Coles on April 9, 2007, against Nyko, claiming violations of California Business and Professions Code related to unfair competition, false advertising, breach of warranty, and consumer protection laws. The core issue is that Nyko's Intercooler 360, designed to reduce Xbox 360 overheating, allegedly exacerbated existing defects in the console, leading to operational failures. Coles seeks class certification, restitution, damages, injunctive relief, and attorney’s fees. A discovery cut-off for class issues was set for October 29, 2007. Nyko's notice of deposition for Coles included requests for the Intercooler 360 and Xbox 360, to which Coles objected, stating the requests were premature. At his deposition on October 22, 2007, Coles did not provide either unit for inspection.

Local Rule 37-1 mandates a meet-and-confer between counsel before filing any discovery motion under Federal Rules of Civil Procedure 26-37, placing the onus on the moving party's counsel to arrange this conference. The rule also requires the moving party to send a letter to the opposing party that identifies each disputed issue or discovery request, briefly states the moving party’s position with supporting legal authority, and specifies the desired discovery terms. The plaintiff argues that defendant Nyko failed to comply with this rule, as Nyko's counsel's email did not include legal authority for their position, leading the plaintiff to request that Nyko’s motion to compel be dismissed. The Court concurred that the email lacked legal support but deemed the omission harmless since the dispute solely concerns the interpretation of a prior court order.

Rule 34 allows any party to request the inspection or testing of tangible items relevant to the case. The parties do not dispute that the Intercooler 360 and Xbox 360 are tangible items under Rule 34, nor do they contest the plaintiff's possession of these items. The contention lies in whether Nyko's inspection should occur during the initial class discovery phase or the merits discovery phase. The Court decided that the inspection and testing should occur during class discovery, granting Nyko’s motion to compel. The Court highlighted that the party seeking class certification must prove all four Rule 23(a) requirements: numerosity, commonality, typicality, and adequate representation. Nyko's examination of the Intercooler 360 and Xbox 360 will help assess whether the claims of the representative parties are typical of the class’s claims, which is crucial for establishing typicality under Rule 23(a)(3). Typicality examines whether other class members have similar injuries and whether the action is based on non-unique conduct affecting the named plaintiff and other members.

A named plaintiff must demonstrate a 'personal stake' in the litigation outcome or prove personal injury to represent a class action, as established in O’Shea v. Littleton. The defendant, Nyko, needs to inspect and test the plaintiffs' Intercooler 360 and Xbox 360 to determine if the claims in the First Amended Complaint are typical of the class claims. Consequently, Nyko's motion to compel the plaintiff to produce these items for inspection is granted, with a deadline of ten days for compliance. The plaintiff may have an expert present during the inspection.

Under Rule 23, a class may be certified if it meets four requirements: numerosity, common questions of law and fact, typicality of claims or defenses, and adequate representation by the parties. Additionally, at least one of three conditions must be satisfied: the risk of inconsistent judgments from separate actions, the opposing party acting on grounds generally applicable to the class, or predominance of common questions over individual ones, making class action the superior method for resolving the matter. The distinction between the requirement for class certification and the standing requirement, which necessitates personal injury, is noted with references to relevant case law.