DANIEL BABARE, Plaintiff, v. SIGUE CORPORATION, Defendant CASE NO. C20-0894-JCC, CASE NO. C21-0114-JCC United States District Court, W.D. Washington Filed July 22, 2021 Counsel Manuel Hiraldo, Pro Hac Vice, Hiraldo PA, Michael Eisenband, Pro Hac Vice, Eisenband Law, P.A., Fort Lauderdale, FL, Kira M. Rubel, The Harbor Law Group, Gig Harbor, WA, for Plaintiff in C20-0894-JCC. Kira M. Rubel, The Harbor Law Group, Gig Harbor, WA, for Plaintiff in C21-0114-JCC. Evelyn Crystal Lopez, Pro Hac Vice, Joshua Briones, Pro Hac Vice, Matthew Joseph Novian, Pro Hac Vice, Mintz Levin Cohn Ferris Glovsky & Popeo PC, Los Angeles, CA, Rogelio Omar Riojas, Goldfarb & Huck Roth Riojas, PLLC, Seattle, WA, for Defendant in C20-0894-JCC. Joshua Briones, Pro Hac Vice, Matthew Joseph Novian, Pro Hac Vice, Mintz Levin Cohn Ferris Glovsky & Popeo PC, Los Angeles, CA, Rogelio Omar Riojas, Goldfarb & Huck Roth Riojas, PLLC, Seattle, WA, for Defendant in C21-0114-JCC. Coughenour, John C., United States District Judge ORDER *1 This matter comes before the Court on Defendant Sigue Corporation's motion for sanctions (Dkt. No. 37) and Plaintiff Daniel Babare's cross motion for sanctions (Dkt. No. 39). Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES the motions for the reasons explained herein. I. INTRODUCTION The practice of law is not just a job, it is a profession. Accordingly, the Court's local rules warn that “the judges of this district are very concerned about professionalism among attorneys, especially in the conduct of discovery.” See W.D. Wash. Local Civ. R. Introduction. Professionalism is so important to the Court that local counsel are required to “remind pro hac vice counsel of the court's commitment to maintaining a high degree of professionalism and civility from the lawyers practicing before this court.” W.D. Wash. Local Civ. R. 83.1(d)(2). Sigue Corporation's rush to seek sanctions over what is, at most, a trivial timing dispute falls short of those standards. II. BACKGROUND In June 2020, Plaintiff Daniel Babare filed a complaint alleging that Defendant Sigue Corporation used an automatic telephone dialing system (“ATDS”) to send Mr. Babare six text messages without his written consent in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b). (See Dkt. No. 1 at 5–7, 10.) The Court stayed the litigation a few months later at Sigue Corporation's request because the U.S. Supreme Court was scheduled to determine the definition of ATDS, and Sigue Corporation represented that the device it used to send the text messages to Mr. Babare was not an ATDS under one of the definitions the Court was considering adopting. (See Dkt. No. 32.) Three months later, in an apparent attempt to evade the stay, Mr. Babare filed a nearly identical complaint in Whatcom County Superior Court, this time proceeding exclusively under Washington's Consumer Electronic Mail Act (“CEMA”), Wash. Rev. Code § 19.190 et seq., which does not require the use of an ATDS. See Babare v. Sigue Corp., C21-0114-JCC, Dkt. No. 1-1 (W.D. Wash 2021). That case was removed to federal court, transferred to the undersigned, and consolidated. See id. at Dkt. Nos. 1, 8, 16. Although Mr. Babare's CEMA claim does not depend on the definition of an ATDS, the parties stipulated that it should also be stayed until the stay was lifted in Mr. Babare's first case. See id. at Dkt. No. 14 at 2. The Supreme Court adopted the narrower definition of ATDS on April 1, 2021. See Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1173 (2021). Two weeks later, the parties filed a joint status report setting forth their views on, among other things, a new trial date and discovery. (See Dkt. No. 36.) A week after that, Mr. Babare served discovery on Sigue Corporation in both cases, consisting of 25 requests for production and 12 interrogatories. (See Dkt. No. 38-1.) Counsel for Sigue Corporation responded later that afternoon by threatening to move for sanctions. (See Dkt. No. 38-2 at 2–3.) Counsel for Mr. Babare argued that there is no basis for sanctions, that Sigue Corporation's counsel's “tone throughout this litigation has been unnecessarily combative and unproductive,” and offered Sigue an extension of time to respond to the discovery. (Id. at 2.) Counsel for Sigue Corporation maintained his objection. (See id. at 2.) The record does not disclose any further communications between the parties until Sigue filed its motion for sanctions about a month later. (Dkt. No. 37.) Four days later, Sigue objected to each of Mr. Babare's discovery requests. (See Dkt. No. 39-1.) III. DISCUSSION *2 Sigue Corporation argues that the Court “must” impose sanctions because Mr. Babare served the discovery requests before the parties held their Rule 26(f) conference, in violation of Rule 26(d)(1). (See generally Dkt. No. 37.) Mr. Babare counters that the discovery was proper because the parties had conferred pursuant to Rule 26(f) before Mr. Babare served the discovery requests, and that even if the Court agrees with Sigue Corporation that they had not, sanctions are not warranted. (See generally Dkt. No. 39.) The Court agrees with Mr. Babare. It is rarely a good idea for a litigant to tell a court what it “must” do, even if the litigant is correct, but it is particularly ill-advised when the litigant is not. Rule 26(g)(3) requires the Court to impose sanctions only if Mr. Babare's attorney's certification was not substantially justified. “A request for discovery is ‘substantially justified’ ... if reasonable people could differ as to whether” it is appropriate. Reygo Pac. Corp. v. Johnston Pump Co., 680 F.2d 647, 649 (9th Cir. 1982), abrogated on other grounds by Cunningham v. Hamilton Cnty., 527 U.S. 198, 200 (1999); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (observing that “substantially justified” generally means “ ‘justified in substance or in the main’—that is, justified to a degree that could satisfy a reasonable person”); United States v. Marolf, 277 F.3d 1156, 1161 (9th Cir. 2002) (“A substantially justified position must have a reasonable basis in both law and fact.”). Therefore, if the certification was reasonable, the Court need not impose sanctions even if Mr. Babare served the discovery requests before the Rule 26(f) conference. Before analyzing that issue, the Court first notes that Mr. Babare's document requests were proper even under Sigue Corporation's interpretation of events. The Federal Rules allow a plaintiff to deliver document requests before the Rule 26(f) conference, so long as they are delivered more than 21 days after the defendant was served with the summons and complaint. Fed. R. Civ. P. 26(d)(2). If a document request is delivered before the Rule 26(f) conference, it is treated as served on the date of the Rule 26(f) conference. Id. Therefore, Mr. Babare's document requests satisfy Rule 26(d), and sanctions are not appropriate based on those requests. Because there is no similar rule pertaining to interrogatories, the crux of the dispute is whether Mr. Babare served the interrogatories before or after the Rule 26(f) conference. Mr. Babare argues that the parties had met and conferred pursuant to Rule 26(f), while Sigue Corporation argues that they had not. Rule 26(f) requires the parties to “consider ... the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.” In the joint status report, the parties state that early resolution of the case is not likely, that they have “preserved any electronically stored information,” and include their views regarding a “proposed discovery plan.” (Dkt. No. 36 at 2–3.) Mr. Babare also offers his view on when initial disclosures should be served. (Id.) Sigue Corporation does not dispute that the parties met and conferred about these topics. Therefore, the record shows that the parties discussed at least some of the topics required by Rule 26(f), if not all of them, regardless of whether the parties referred to their conference as a “Rule 26(f) conference.” The Court need not determine what, exactly, the parties discussed and whether the parties’ conference satisfies Rule 26(f) because, at a minimum, Mr. Babare's position that the conference qualified as a Rule 26(f) conference is reasonable. Therefore, Mr. Babare was substantially justified in serving the interrogatories, and sanctions are not appropriate, even if Sigue Corporation is correct that the parties’ conference did not fully satisfy all of the requirements of Rule 26(f). *3 Mr. Babare's service of discovery also does not violate the Court's stay. The Court stayed this litigation “pending the Supreme Court's opinion in Facebook, Inc. v. Duguid, No. 19-511.” (Dkt. No. 32 at 5.) Therefore, the case was stayed until the Supreme Court released its opinion in Duguid. See, e.g., Pending, Black's Law Dictionary (11th ed. 2019) (defining “pending” to mean “remaining undecided; awaiting decision” or “while awaiting; until”). Once it did, the stay expired by its own terms. Nothing in the Court's order provided that the stay would remain in place until the Court entered a separate order expressly lifting it. The closest question is whether the Court should sanction Sigue Corporation, as Mr. Babare requests. (See Dkt. No. 39 at 10.) The Court agrees with Mr. Babare that Sigue Corporation's rush to seek sanctions was unprofessional and unnecessary, particularly because, as far as the record discloses, Sigue's counsel did not make a good-faith effort to meet and confer or to resolve the issue by taking actions short of seeking sanctions, such as by moving for a protective order or by refusing to respond to the requests until after the parties had what Sigue viewed as an appropriate Rule 26(f) conference. Instead, Sigue Corporation's first response to the discovery requests was to threaten to seek sanctions. (See Dkt. No. 38-2 at 2–3.) That is not consistent with the “high degree of professionalism and civility” the Court expects “from the lawyers practicing before this court.” W.D. Wash. Local Civ. R. 83.1(d)(2). However, given the ambiguity about whether the parties’ conference satisfied Rule 26(f), the arguments Sigue Corporation made in its motion for sanctions are not frivolous, and the Court does not conclude, on this record, that Sigue Corporation filed the motion to harass Mr. Babare. Therefore, sanctions are not appropriate.[1] See In re Keegan Mgmt. Co. Secs. Litig., 78 F.3d 431, 436 (9th Cir. 1996). IV. CONCLUSION For the foregoing reasons, the Court DENIES Sigue Corporation's motion for sanctions (Dkt. No. 37) and Mr. Babare's cross motion for sanctions (Dkt. No. 39). DATED this 22nd day of July 2021. Footnotes [1] The Court also agrees with Sigue Corporation that Mr. Babare's cross motion for sanctions did not comply with Local Civil Rules 7(k) and 7(d).