QC Labs v. Green Leaf Lab, LLC Case No. 8:18-cv-01451-JVS (JDEx) United States District Court, C.D. California Filed August 14, 2019 Counsel Maria Barr, Deputy Clerk, Attorneys Present for Plaintiff(s): n/a n/a, Court Reporter / Recorder, Attorneys Present for Defendant(s): n/a Early, John D., United States Magistrate Judge Proceedings: (In Chambers) Order Denying Ex Parte Application (Dkt. 41) *1 On August 16, 2018, Plaintiff QC Labs (“Plaintiff”) filed this action against Defendant Green Leaf Lab, LLC, an Oregon limited liability company (“Green Leaf”). Dkt. 1. On June 13, 2019, Plaintiff filed a “Motion to Compel [Green Leaf] to Produce a Prepared 30(b)(6) Witness and Response to Requests for Production of Documents.” Dkt. 25 (“Motion”). Following briefing and a hearing, on July 19, 2019, the Court granted the Motion and ordered, among other things, that Green Leaf: “shall produce an appropriate Rule 30(b)(6) designee for a deposition to testify as to the Disputed Topics (Nos. 1, 7, 13, 16, and 24) not to exceed three hours at a reasonable date and location noticed by Plaintiff, subject to the geographic limits set by the Rules.” Dkt. 38 (“Order”) at 14. Nearly four weeks after the Order, on August 13, 2019, Green Leaf filed an “Ex Parte Application to Reschedule Deposition Noticed for August 19, 2019” (Dkt. 41, “Application” or “App.”), asking the Court to “reschedule” Green Leaf's corporate representative's Rule 30(b)(6) continued deposition to a date “after September 4, 2019” because “the only representative capable of answering questions” about relevant topics is Rowshan Reordan, who underwent surgery at some point in the past, “is unable to sit upright for prolonged periods,” and whose “physician proscribed [sic] rest until September 4, 2019.” App. at 1. Although the precise scope of Ms. Reordan's capacity to testify is of central importance to the Application, Green Leaf did not submit a declaration from Ms. Reordan—Green Leaf's “founder” and “manage[r].” App. at 3. Green Leaf instead included a declaration from counsel which recites conversation with counsel for Plaintiff regarding Ms. Reordan's claimed medical condition but does not recount any foundation for the statements regarding Ms. Reordan's asserted condition. Green Leaf includes a letter dated July 25, 2019 from a health care professional referencing “Rowshan Tiffany Reordan-Loney” that states in pertinent part that the patient: recently underwent a surgical procedure and is still healing. I recommend that she not travel until on or after September 4th. Dkt. 41-1 at 35 (CM/ECF pagination). The noticed deposition is scheduled to take place in Portland, Oregon, Ms. Reordan's home city, on August 19, 2019. See Dkt. 41-1 at 37. On August 14, 2019, Plaintiff filed an opposition to the Application (Dkt. 45), asserting, among other things, that Plaintiff's ability to complete expert discovery and prepare a dispositive motion would be prejudiced by the delay sought by Green Leaf. Ex parte applications “are rarely justified.” Mission Power Eng'g Co. v. Continental Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995). To justify ex parte relief, putting the moving party “to go to the head of the line in front of all other litigants and receive special treatment,” the moving party must, at a minimum, show: (1) its “cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures”; and (2) “the moving party is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Id. at 492; see also Local Civil Rule 37–3 (for a discovery motion to be heard on an ex parte basis, the moving party must show “irreparable injury or prejudice not attributable to the lack of diligence of the moving party”). These requirements are necessary because ex parte applications “are inherently unfair” as the parties' opportunities to prepare “are grossly unbalanced.” Mission Power, 883 F. Supp. at 490. Such applications “must be supported by deposition transcripts or by affidavits or declarations whose contents would be admissible if the deponents, affiant, or declarants were testifying in court. A statement ‘on information and belief’ by the lawyer preparing the papers is insufficient.” Id. at 492 (emphasis added). *2 Here, Green Leaf has not shown that the “crisis” upon which it seeks to “go to the head of the line” by way of an ex parte application, rather than a noticed motion, is not a crisis of Green Leaf's own making. The Order was issued nearly four weeks ago. Despite Green Leaf's assertion that only Ms. Reordan can testify on its behalf, the Order does not require Ms. Reordan to act as Green Leaf's designee, and it is not apparent why another representative could not have, over the past four weeks, become sufficiently knowledgeable about the topics to testify on Green Leaf's behalf. See, e.g., Standard Fabrics Int'l, Inc. v. Dress Barn Inc., 2017 WL 240072, at *6 (C.D. Cal. Jan. 19, 2017) (noting that a Rule 30(b)(6) designee, with the corporation's assistance, must conduct a “robust internal investigation” of the topics contained in the notice to prepare for the deposition); Bd. of Trustees of Leland Stanford Junior Univ. v. Tyco Int'l Ltd., 253 F.R.D. 524, 526 (C.D. Cal. 2008) (Rule 30(b)(6) designee may be required to undertake even a “burdensome” review of “voluminous” documents to prepare). Green Leaf has not met its burden of showing that the situation is not one of its own making. However, even assuming Green Leaf had made a sufficient showing to justify consideration of the matter on an ex parte basis, as a substantive matter, Green Leaf has not shown by admissible evidence the required good cause to warrant the relief it seeks. A person from whom discovery is sought may move for a protective order limiting or even forbidding discovery “for good cause” to protect the moving party from annoyance, embarrassment, oppression or undue burden or expense. Rule 26(c)(1). A party seeking a protective order has a “heavy burden” of showing why discovery should be limited. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). “ ‘Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning do not satisfy the Rule 26(c) test.’ ” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004 (citation omitted)). “The party who resists discovery has the burden to show that discovery should not be allowed, and has 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, 519 F.2d at 429); see also Louisiana Pac. Corp. v. Money Mkt. 1 Institutional Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. 2012) (“the party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence”). “[G]eneral or boilerplate objections such as ‘overly burdensome and harassing’ are improper—especially when a party fails to submit any evidentiary declarations supporting such objections.” A. Farber & Partners, Inc., 234 F.R.D. at 188 (citing Paulsen v. Case Corp., 168 F.R.D. 285, 289 (C.D. Cal. 1996)). Here, Green Leaf has not submitted admissible evidence to support its assertion that only Ms. Reordan can properly act as a Rule 30(b)(6) witness, nor has it submitted admissible evidence to support its assertion that Ms. Reordan is unable to submit to three hours of deposition questioning on August 19, 2019 in her hometown of Portland. With respect to the issue of Ms. Reordan's ability to testify, were the deposition noticed for Southern California, the result would be different—a doctor's note “recommend[ing]” “no[ ] travel” until September 4 would be a sufficient showing of good cause to warrant a protective order to prevent travel for a deposition until September 4. However, the deposition does not call for travel, as that term is commonly understood. Green Leaf has had nearly four weeks to provide evidence from a medical professional attesting that answering questions for three hours prior to September 4, 2019 is not medically advisable for Ms. Reordan. It has not done so. Green Leaf further had the ability to obtain a declaration from Ms. Reordan, Green Leaf's “founder” and “manage[r]” attesting to limitations. It has not done so. Nor has Green Leaf demonstrated that only Ms. Reordan can be prepared, in four weeks' time, to answer questions regarding the five remaining topics. Green Leaf has not met its “heavy burden” to justify a protective order limiting the timing of a court-ordered further deposition—a further deposition that is necessary because Ms. Reordan, as previously found by this Court, failed repeatedly to properly answer questions at the original Rule 30(b)(6) deposition. *3 The Court is not unsympathetic to medical difficulties apparently faced by Ms. Reordan. However, the Order does not facially compel Ms. Reordan's attendance at the continued deposition. Green Leaf can properly prepare another designee. Further, the parties can and should work cooperatively to minimize any inconvenience on any witness, including permitting breaks as required, ensuring appropriate accommodations and seating/standing arrangements, and if warranted, considering another mutually agreeable location for the deposition closer to the witness's home. However, the Court is not in a position to issue any orders regarding such potential reasonable accommodations as Green Leaf has not provided any admissible evidence regarding the nature of the claimed limitations. The Court notes that Green Leaf also asks that the continued deposition be limited to the five topics set forth in the Order. App. at 1. The Order speaks for itself and the continued deposition may only proceed with respect to the topics set forth in the Order. For the foregoing reasons, Green Leaf's Application (Dkt. 41) is DENIED, without prejudice. IT IS SO ORDERED.