Summary:The court did not address any specific type of ESI. However, the court did advise the parties to act professionally in connection with the deposition and warned that inappropriate conduct may result in a referral of any discovery dispute to a discovery referee and/or sanctions against one or both parties. This is important for the use of ESI in discovery disputes.
Court:United States District Court, C.D. California
Date decided:
Judge:Aenlle-Rocha, Fernando L.
THERESA BROOKE, Plaintiff, v. TREASURE MOUNTAIN HOLDINGS LLC, Defendant Case No. 5:20-cv-02208-FLA (SPx) United States District Court, C.D. California Filed April 12, 2022 Counsel P. Kristofer Strojnik, Law Offices of Peter Strojnik, Phoenix, AZ, for Plaintiff. Dominique N. Westmoreland, Westmoreland Law Firm PC, Rolling Hills Estates, CA, for Defendant. Aenlle-Rocha, Fernando L., United States District Judge ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S EX PARTE APPLICATION FOR PROTECTIVE ORDER [DKT. 65] AND DENYING DEFENDANT'S EX PARTE APPLICATION TO VACATE SCHEDULING ORDER AND RE-OPEN PRE-TRIAL AND DISCOVERY DEADLINES [DKT. 66] BACKGROUND *1 On June 24, 2021, the court issued the Order re: Schedule of Pretrial and Trial Dates, Trial Requirements, and Conduct of Attorneys and Parties (“Scheduling Order”), setting forth the pretrial dates that govern this action. Dkt. 32. In particular, the court set (1) December 3, 2021 as the fact discovery cut-off date and the last date to hear discovery motions, and (2) February 11, 2022 as the last date to hear motions, including motions for summary judgment. Id. at 3. On April 8, 2022, Plaintiff Theresa Brooke (“Plaintiff”) filed an Ex Parte Application (“Plaintiff's Application”), Dkt. 65, requesting the court excuse her from complying with Defendant Treasure Mountain Holdings, LLC's (“Defendant”) Third Amended Notice of Deposition (“Notice of Deposition”), Dkt. 62, which was filed with the court on April 4, 2022. Plaintiff contends a protective order is warranted because fact discovery closed on December 3, 2021, but Defendant has not moved for an order to reopen discovery and has not otherwise shown excusable neglect for not completing a deposition timely. Id. at 3. Defendant opposes Plaintiff's Application. Dkt. 67.[1] On April 10, 2022, Defendant filed an Ex Parte Application to Vacate Scheduling Order and Re-Open Pre-Trial and Discovery Deadlines (“Defendant's Application”). Dkt. 66. Defendant requests the court reopen discovery and continue pretrial dates in this action, arguing that Plaintiff has refused to participate in discovery, including by refusing to (1) appear for her deposition, which was noticed for November 30, 2021, (2) produce documents and witnesses Plaintiff identified in her initial disclosures, and (3) produce supplemental responses to Defendant's discovery requests. Id. at 3. According to Defendant, Plaintiff has ignored its requests for a stipulation to reopen discovery and continue pretrial dates. Id. at 3-4. Plaintiff Theresa Brooke (“Plaintiff”) opposes the Application. Dkt. 68.[2] DISCUSSION I. Legal Standard *2 Ex parte applications are requests made to the court outside the framework of the ordinary rules for notice of a hearing. Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995). Ex parte applications do not offer the opposing party a fair opportunity to respond and are “rarely justified.” Id. at 490-91. To obtain ex parte relief, the moving party must establish his or her cause “will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures” and “that 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. To show good cause for a continuance, a party must provide specific, detailed, and non-conclusory reasons for granting the extension, including a showing of diligence in pursuing the litigation. See Fed. R. Civ. P. 16(b)(4) (requiring good cause showing); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (noting that the standard focuses on a party's diligence and that “the inquiry should end” when diligence is not shown). As stated in the Scheduling Order, the court has a strong interest in keeping scheduled dates certain, and changes in dates are disfavored. Dkt. 32 at 21. Therefore, a request to continue or extend a trial or pretrial date must be supported by a detailed factual showing of good cause and due diligence demonstrating the necessity for the continuance and a description of the parties' efforts, dating back to the filing of the complaint, of the steps they have taken to advance the litigation. Id. This detailed showing must demonstrate that the work still to be performed reasonably could not have been accomplished within the applicable deadlines. General statements are insufficient to establish good cause. Id. Without such compelling factual support and showing of due diligence, requests to continue dates set by the court will be denied. Id. “A request to continue or extend dates or deadlines that have already expired constitutes a presumptive lack of due diligence.” Dkt. 12 (Initial Standing Order) at 15-16. II. Defendant's Ex Parte Application Defendant contends good cause exists to reopen discovery and continue pretrial deadlines because (1) the court has already modified the scheduling order to order the parties to complete ADR proceedings, and (2) the court recently issued an order denying Defendant's Motion for Judgment on the Pleadings (“MJOP”). Dkt. 66 at 5. The court, however, continued the deadline to complete ADR proceedings based on the parties' failure to complete the settlement conference by March 4, 2022, as required by the Scheduling Order, Dkt. 32 at 3. Dkt. 56. The court's extension of one deadline based on the parties' failure to comply with the court's deadlines does not establish good cause for the extension of other pretrial deadlines. Defendant also argues that good cause exists because the court recently issued a ruling on Defendant's MJOP. Dkt. 66 at 5. Defendant notes that the court took its Motion for Judgment on the Pleadings under submission on July 26, 2021, and Defendant states it was waiting patiently for the adjudication of its motion. Defendant, however, does not cite any legal authority for the proposition that the filing of a motion for judgment on the pleadings constitutes grounds to stay an action or excuse a party's failure to diligently proceed with discovery. The mere fact that Defendant's motion was potentially dispositive does not excuse Defendant's failure to conduct discovery while awaiting a ruling or to request an extension of pretrial deadlines timely.[3] *3 Defendant has not demonstrated sufficient diligence or good cause to justify a continuance of pretrial and trial dates or reopening discovery. The court issued the Scheduling Order on June 24, 2021, and the parties have known since that date that December 3, 2021 was the last day to hear discovery motions. Dkt. 32. Defendant, however, does not provide any facts regarding its discovery efforts beyond its first attempt on November 4, 2021, to serve Plaintiff notice of a deposition that was set for November 30, 2021—three days before the close of fact discovery. See Dkt. 66; Dkt. 69 at 4. While Defendant contends Plaintiff has refused to produce documents and witnesses she identified in her initial disclosures, as well as supplemental responses to her discovery responses, Dkt. 66 at 3, Defendant does not state when it propounded discovery, explain why it did not move to compel responses or further responses prior to the close of fact-discovery, or provide any facts to show it was diligent in pursuing this discovery. In sum, Defendant fails to demonstrate diligence or good cause for the court to continue pretrial dates and reopen discovery. See Johnson, 975 F.2d at 609. The court, therefore, DENIES Defendant's Application in its entirety. III. Plaintiff's Ex Parte Application Plaintiff requests the court grant a protective order, excusing her from complying with Defendant's Notice of Deposition. Dkt. 65. According to Plaintiff, good cause exists to preclude this discovery because fact-discovery closed on December 3, 2021. Dkt. 65 at 1. Pursuant to Fed. R. Civ. P. 26(c)(1): (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending — or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. ... The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be present while the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. (2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery. In connection with its Application, Defendant presents evidence that Plaintiff and her counsel refused to appear for the initially noticed deposition on November 30, 2021, because they “both [had] pre-planned holidays” and because Plaintiff's counsel “[would] be out from the day after Thanksgiving through entirety of December.” Dkt. 66-1 at 12. Plaintiff's counsel, Strojnik, further stated “[w]e are both happy to be present in early January.” Id. Defendant additionally presents evidence that Plaintiff's counsel subsequently refused to discuss stipulating to an extension of the discovery cutoff, despite Plaintiff's prior statement that she would be “happy to be present [for a deposition] in early January.” Id. at 14.[4] Plaintiff later refused to appear for deposition upon Defendant's requests in February 2022. See id. at 17. *4 A party is not entitled to unilaterally refuse to appear for a properly noticed deposition or otherwise participate in discovery. Plaintiff and her counsel stated they were not available on the noticed date or in December 2021, and Defendant demonstrated professional courtesy in respecting Plaintiff's stated unavailability. As the parties' correspondence shows that Plaintiff agreed to appear for deposition at a later date, it would be unjust to allow Plaintiff to avoid an oral deposition simply because her counsel subsequently refused to agree to extend the discovery cut-off date to allow the agreed-upon deposition and Defense counsel did not move for an order from the court in reliance of Plaintiff's representations. The court, however, will not enforce Defendant's request for documents, as Plaintiff did not explicitly agree to produce documents in the parties' correspondence and Defendant did not file a motion to compel the production of these documents timely. The court, therefore, DENIES Plaintiff's Application in part and ORDERS Plaintiff to appear for a deposition within 30 days of this Order on a date mutually agreed-upon by the parties. See Fed. R. Civ. P. 26(c)(2). The court GRANTS the Application in part and EXCUSES Plaintiff from appearing for deposition on April 15, 2022 and EXCUSES Plaintiff from complying with Defendant's requests for production of documents. CONCLUSION For the aforementioned reasons, the court DENIES Defendant's Application (Dkt. 66) and requests to reopen discovery and extend pretrial dates. The court GRANTS Plaintiff's Application (Dkt. 65) in part and EXCUSES Plaintiff from appearing for deposition on April 15, 2022 and complying with Defendant's requests for production of documents. The court DENIES Plaintiff's Application in part and ORDERS Plaintiff to appear for a deposition within 30 days of this Order on a date mutually agreed-upon by the parties. While the court has not reopened discovery, the court advises the parties that it expects them to act professionally in connection with the deposition and that inappropriate conduct by either party, such as badgering the deponent, repeated questions into privileged matters, instructing the deponent not to answer questions on grounds other than privilege or where otherwise expressly authorized by law, insults directed toward the opposing party or counsel, or other harassing conduct may result in a referral of any discovery dispute to a discovery referee at the offending party or parties' expense and/or sanctions against one or both parties. IT IS SO ORDERED. Footnotes [1] Defendant contends Plaintiff's Application is defective because Plaintiff's counsel did not file a declaration in support of the Application, as is required by Local Rule 7-19.1. Dkt. 67-3. Plaintiff filed the Declaration of Peter Kristofer Strojnik (“Strojnik”) as an attachment to the Application, in which counsel attests he provided Defendant with notice of the Application on April 7, 2022. Dkt. 65 at 5, ¶ 7. Defendant's argument, thus, fails. [2] In her opposition, Plaintiff states Defendant failed to comply with Local Rule 7-19.1 because it filed its Application mere minutes after giving Plaintiff notice of the Application. Dkt. 68 at 2; see Dkt. 68-1. Based on the time of filing, Defendant appears to have filed its Application only six (6) minutes after first notifying Plaintiff of its intent to file the Application and while the parties were discussing the basis for the Application via email. See Dkt. 68-1. Such notice does not constitute a reasonable, good faith effort to advise Plaintiff's counsel of the substance of Defendant's Application, as is required by Local Rule 7-19.1. While the court understands attorneys may be zealous in their representation of their clients, the court expects counsel to act with professionalism, courtesy, and good faith at all times. The parties are advised that a failure to make reasonable, good faith efforts to communicate with opposing counsel prior to filing a request with the court is a violation of counsel's professional responsibilities and the Local Rules (including Local Rules 7-3 or 7-19.1) and may result in the striking or denial of motions, applications, or other requests without further notice, as well as the imposition of additional sanctions. See Local Rule 83-7. This advisement, however, should not be viewed by the parties as an invitation to file frivolous requests for sanctions, and such conduct may result in the imposition of sanctions against the party seeking sanctions. See Fed. R. Civ. P. 11(b). [3] Defendant notes that reopening discovery would assist it in obtaining discovery needed to move for summary judgment against Plaintiff's claims. Dkt. 66 at 6. The last date to hear motions, however, expired on February 11, 2022, and the deadline to file motions for summary judgment expired on January 7, 2022. See Dkt. 32 at 3. As Defendant did not file a motion for summary judgment or request an extension of pretrial deadlines timely, Defendant has already waived its right to bring such a motion. [4] The court notes that Defendant's request for a stipulation appears to have been made on December 3, 2021, which was the discovery cut-off date. See Dkt. 66-1 at 14. The court's ruling should not be interpreted to suggest that Defendant's request was timely or that Defendant is without blame for its failure to complete Plaintiff's deposition. See Dkt. 12 at 16 (“Counsel shall avoid submitting requests for continuances or extensions of time less than five (5) court days prior to the expiration of the scheduled date.”)