Jeffrey Kearns v. Loandepot.com, LLC Case No. 8:22-cv-01217-JWH (JDEx) United States District Court, C.D. California Filed January 11, 2024 Counsel Adrian Robert Bacon, Law Offices of Todd Friedman PC, Woodland Hills, Scott Edelsberg, Edelsberg Law PA, Los Angeles, CA, Chris C. Gold, Edelsberg Law PA, Aventura, Garrett O. Berg, Shamis and Gentile, P.A., Miami, Jibrael S. Hindi, The Law Office of Jibrael S. Hindi PLLC, Fort Lauderdale, Manuel S. Hiraldo, Michael L. Eisenband, Eisenband Law PA, Fort Lauderdale, FL, for Jeffrey Kearns. Eric J. Troutman, Puja J. Amin, Brittany Ariana Andres, Troutman Amin, LLP, Irvine, CA, for Loandepot.com, LLC. Early, John D., United States Magistrate Judge Proceedings: (In Chambers) Order Denying Ex Parte Application (Dkt. 117) *1 On June 27, 2022, Jeffrey Kearns (“Plaintiff”), on his own behalf and putatively on behalf of others similarly situated, filed a complaint against Loandepot.com, LLC (“Defendant”). Dkt. 1. On December 16, 2022, the Honorable John W. Holcomb, United States District Judge issued a Scheduling Order setting a deadline to file a Motion for Class Certification on August 30, 2023. Dkt. 50. On September 29, 2023, Judge Holcomb, among other things, reset the deadline for the filing of a Motion for Class Certification to January 26, 2024. Dkt. 91. On October 9, 2023, Plaintiff, with Defendant's consent, filed the operative Second Amended Complaint. Dkt. 93 (“SAC”) at 1, n.1. The SAC asserts violations of the Telephone Consumer Protection Act, 47 U.S.C. § 22, seeking to certify a class of persons who received prerecorded cellular “robocalls” made by or on behalf of Defendant, selling goods or services of Defendant, from telephone numbers Defendant received from “LendingTree.” Defendant answered the SAC on October 23, 2023. Dkt. 100. On November 7, 2023, Plaintiff filed a Motion to Compel (Dkt. 101, “Motion”) Defendant to provide further responses to certain discovery requests Plaintiff served on November 23, 2022 (see Dkt. 101-1 at 16). Following briefing, on December 4, 2023, the Court granted the Motion in part and denied the Motion in part, ordering Defendant to, within 24 days, produce all documents responsive to three Requests for Production, provide a verified, fully responsive answer to one Interrogatory, and produce a proper privilege log with respect to any document or information withheld from production based on privilege. Dkt. 110 (“Order”). In the Order, the Court concluded with the following advisements and directives to counsel for the parties: Lastly, counsel for the parties are advised that the manner in which: (1) Plaintiff propounded discovery; (2) Defendant responded to discovery; (3) the parties conferred regarding discovery disputes; and (4) the parties presented their disputes to the Court, left a great deal to be desired. The Court will not, at this time, make any further findings on the issues set [forth] herein, but directs counsel for the parties to review Rules 26, 30, 33, 34, 36, and 37, in full, with all Advisory Committee Notes regarding all amendments thereto, as well as Local Civil Rule 37-1 to 37-4. Of particular note, counsel are reminded that: every discovery request, response, or objection must be signed by at least one attorney of record ... [who b]y signing, ... certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry: ... with respect to a discovery request, response, or objection, it is ... consistent with [the Rules] ... [is] not interposed for an improper purpose, such as to ... cause unnecessary delay ... and ... [is] neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.[ ] *2 Rule 26(g)(1). Counsel are also reminded before filing any discovery related motion, counsel are required to confer “in good faith to eliminate the necessity” of Court intervention or to “eliminate as many disputes as possible” and “failure of any counsel to comply with or cooperate in the foregoing procedures may result in the imposition of sanctions.” L.R. 37-1, 37-4. Although no action is taken at this time, the parties are advised that, in addition to sanctions under Rule 37, the Court may impose sanctions under Rule 26(g) and/or L.R. 37-4 for any future violations of those provisions. To be clear, this caution is directed to all counsel. For future discovery-related motions in this case, the moving party is ORDERED to include a declaration by counsel with the motion that attaches all correspondence between the parties regarding the issues raised in such motion, states when the L.R. 37-1 meeting of counsel took place regarding the issues raised in the motion, states by what means (in-person, by telephone, or by videoconference) the conference proceeded, states who participated in the conference, states how long the conference lasted, and affirms that counsel discussed each discovery request, each response thereto, each objection contained in each such response, and any supplemental response or narrowed request, with the opposing counsel in a good faith attempt to resolve the dispute. Any motion that does not comply with the Local Rules or the foregoing requirements is subject to summary denial, among other possible sanctions. In addition, lead counsel for the parties and any counsel who participated in the drafting of the discovery requests, responses, meet and confer correspondence, and joint stipulation (or motion and opposition if no joint stipulation is filed) are ordered to personally attend the hearing on any subsequent discovery motion and be prepared to answer questions as to whether the motion, discovery requests and responses comply with the Rules, including Rule 26(g)(1)(B), as well as the Local Rules. All counsel are further advised that violations of court orders regarding discovery could result in sanctions, up to and including “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action,” “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters into evidence,” “striking pleadings in whole or in part,” “dismissing the action or proceeding in whole or in part,” “rendering a default judgment against the disobedient party,” and/or “treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.” Rule 37(b)(2)(A). Order at 19-20. On January 10, 2024, at 7:48 p.m., Defendant filed an Ex Parte Application for Protective Order (Dkt. 117, “Application” or “App.”), asking the Court to preclude Plaintiff from proceeding with a further deposition of Defendant under Federal Rule of Civil Procedure (“Rule”) 30(b)(6), then-noticed to commence on January 18, 2024. Defendant argues that Plaintiff already proceeded with a Rule 30(b)(6) deposition of Defendant on November 29, 2023, and a further deposition would violate Rule 30(a)(2)(A)(ii). App. at 3. Defendant asserts that it offered to allow Plaintiff to proceed with “a deposition by written questionnaire” or to “move Plaintiff's certification deadline to facilitate any additional needed discovery,” but Plaintiff “insisted” that Defendant be deposed on January 18, 2024, “or another prior date.” Id. at 4. Thus, Defendant argues: (1) the noticed “continued” January 18, 2024 deposition would violate Rule 30(a)(2)(A)(ii); (2) the “continued” deposition notice setting January 18, 2024, was served on January 10, 2024, providing insufficient notice under Rule 30(b)(1); (3) Plaintiff knew when it proceeded with the November 29 deposition that it was proceeding without documents subject to the Motion, and in so doing, should not be permitted to reopen the deposition; and (4) a further deposition would cause undue burden, inconvenience, and expense upon Defendant, in part because Defendant's Motion to Deny Class Certification, set for hearing before Judge Holcomb on January 19, 2024, would, if granted, obviate the need for any further class related discovery. Id. at 9-11. Defendant states that it provided notice of the Application by email to Plaintiff's counsel at 2:36 p.m. on January 10, 2024, and “attempted to leave a voicemail to Plaintiff's counsel, Manny Hiraldo, regarding the filing of the ex parte application ” at 7:10 p.m., but “the mailbox was full.” Id. at 13. Sometime after 7:10 p.m., counsel for Defendant attempted to call other Plaintiff's counsel, but was unable to reach counsel. Id. at 13-14. *3 In Opposition to the Application, Plaintiff states that he proceeded with the Rule 30(b)(6) deposition on November 29, 2023, even though discovery remained in dispute, “to avoid running up against the Court's class certification deadline,” but the deposition was “held open” pending a ruling on the Motion and any further production by Defendant. Opp. at 1-2. Plaintiff states that the day after receiving the discovery responses that Defendant was ordered to provide, on December 29, 2024, Plaintiff contacted Defendant and offered six proposed dates for a continued deposition in January 2024. Id. at 2. Defendant's counsel responded that counsel would “check[ ] in with the client,” which Plaintiff interpreted to mean a date would be provided; Defendant did not, at the time, object to a continued deposition. Id. Plaintiff's counsel states that counsel made multiple further attempts to schedule the continued deposition date with Defendant's counsel over the following week, to no avail. Id. With the certification motion deadline of January 26, 2024 “quickly approaching” and no date having been provided by Defendant, on January 8, 2024, Plaintiff set the deposition for January 19, 2024. Id. Counsel later changed the date to January 18, 2024, to avoid a conflict with the hearing on Defendant's Motion to Deny Class Certification. Id. at n.1. Plaintiff argues that “it now appears that Defendant only told Plaintiff that it was checking on dates with their client so that additional time would pass so that Defendant could create an emergency to file” the Application. Plaintiff further argues that the deposition is not a “second” deposition because it is a Rule 30(b)(6) deposition, not an individual deposition, and because Plaintiff kept the November 29 deposition “open.” Id. at 2-4. Plaintiff “reiterates” that he is willing to reschedule the deposition at an agreeable time through Zoom. Id. at 5. The Court finds the Application, and supporting documents, and the Opposition, and supporting documents, provide sufficient information for the Court to rule on the Application. To the extent that Defendant, by the Application, seeks an order that the continued Rule 30(b)(6) deposition of Defendant not be permitted to proceed at all, the Application (Dkt. 117) is DENIED. Without reaching the issue, even assuming Plaintiff was required to obtain leave of court to take the continued deposition under Rule 30(a)(2)(A)(ii), the Court grants such leave, finding good cause for the continued deposition here. The basis for the continued deposition is that Defendant had not, as of November 29, 2023, provided substantive responses to three Requests for Production and one Interrogatory, discovery that had been propounded more than a year earlier. That Plaintiff proceeded with the Rule 30(b)(6) deposition of Defendant while the Motion was pending regarding those inadequate responses was an effort by Plaintiff to move the litigation forward, despite Defendant's discovery failures. The Court will not punish Plaintiff for Defendant's discovery shortcomings. Nor does Defendant's offer to agree to further extend the filing deadline for the filing of the Class Certification Motion alter this conclusion. Again, it is Defendant's failure to adequately respond to valid, legitimate discovery requests for over a year that caused the delay; Plaintiff should not be placed in a position to ask for a second extension of the deadline to file the Class Certification Motion and bear the risk that such a request would be denied by Judge Holcomb. Nor is Defendant's offer to proceed with a deposition by “written questionnaire” sufficient to deny Plaintiff the continued deposition. The Court assumes Defendant is referring to Rule 31, Depositions by Written Questions, which the Court finds inadequate here. Among other things, Rule 31(a)(5) provides for various additional timelines for the service of cross-questions, redirect questions, and recross questions, which must then be provided to the deposition officer, who would then proceed under Rule 30(c), (e), and (f), to take the deponent's testimony, certify the deposition, and send it to the parties under Rule 31(b), all of which would collectively result in answers not being provided by January 26, 2024, the Class Certification Motion filing deadline. Further, again, Plaintiff should not be limited in his ability to take full and fair discovery in the form of live deposition testimony by Defendant's delay of over a year in properly and fully responding to discovery. Even if a Court order is required under Rule 30(a)(2)(A)(ii), Plaintiff has shown good cause for the continued deposition here. With respect to Defendant's objection based on lack of sufficient notice, Defendant's position is strongly undermined by Defendant's counsel's conduct herein. Plaintiff's counsel attests he provided Defendant's counsel with six proposed dates on December 29, 2023 (the day after Defendant provided the Court-ordered further discovery responses), all in the month of January, limited by the Class Certification Motion filing deadline of January 26, 2023. Defendant did not, on December 29, 2023, or in the ensuing nine days, object to the continued deposition or object that any of the dates proposed by Plaintiff were “unreasonable.” Rather, Defendant's counsel stated, “We are checking with the client.” Dkt. 118-2. Despite multiple attempts to get an answer from Defendant, having not heard a substantive response by January 8, 2024, and with the January 26 deadline looming, Plaintiff noticed the continued Rule 30(b)(6) deposition, limited to two topics regarding Defendant's responses to Plaintiff's discovery, for January 19, 2024, the latest of the dates proposed by Plaintiff and only one week before the Class Certification Motion deadline. See Dkt. 117-1 at 16-19 (CM/ECF pagination). Only thereafter did Defendant first express an unwillingness to appear for the continued deposition by stating it would seek “an emergency protective order if this unilaterally set second deposition ... is not immediately withdrawn.” Id. at 21. As noted, on January 10, 2024, Plaintiff re-noticed the deposition, regarding the same topics, for January 18, 2024, to avoid a conflict with a hearing set for January 19, and thereafter offered to coordinate an alternative date, prior to January 26. Id. at 23-28. *4 Rule 30(b)(1) requires that “a party who wants to depose a person ... must give reasonable written notice.” What constitutes reasonable notice depends on the circumstances of each case. See Hart v. United States, 772 F.2d 285, 286 (6th Cir. 1989). Fewer than eight days' notice has been found unreasonable. See Gulf Prod. Co. v. Hoover Oilfield Supply, Inc., 2011 WL 891027, at *3 (E.D. La. Mar. 11, 2011) (“courts have ruled that a week or less is not sufficient notice pursuant to the rules”); see also Tyler v. City of San Diego, 2015 WL 1956434, at *2 (S.D. Cal. Apr. 29, 2015) (“[s]even days is insufficient notice” for a municipal defendant to adequately prepare for a Rule 30(b)(6) deposition); Sullivan v. Dollar Tree Stores, Inc., 2008 WL 706698, at *1-2 (E.D. Wash. Mar. 14, 2008) (four days' notice for a Rule 30(b)(6) deposition not reasonable”). However, periods of fourteen days, ten days, and eight days have been found reasonable. See, e.g., Paige v. Commissioner, 248 F.R.D. 272, 275 (C.D. Cal. 2008) (fourteen days' notice was reasonable); Charm Floral v. Wald Imports, Ltd., 2012 WL 424581, at * 3 (W.D. Wash. Feb. 9, 2012) (eight days' notice was reasonable); Jones v. United States, 720 F. Supp. 355, 366 (S.D.N.Y. 1989) (same); see also In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 320, 327 (N.D. Ill. 2005) (“ten business days' notice would seem to be reasonable”); but see Kilby v. CVS Pharmacy, Inc., 2017 WL 1682695, at *1 (S.D. Cal. Apr. 26, 2017) (ten calendar days' notice not reasonable for a fourth Rule 30(b)(6) deposition). Courts properly consider the scope of topics identified for a Rule 30(b)(6) deposition in assessing the reasonableness of notice. See Gulf Prod. Co., 2011 WL 891027, at *3. Defendant's assertion that it only had eight days' notice for the deposition is disingenuous, to put it mildly. Defendant was aware of the request and had six proposed dates since December 29. Defendant did not assert a lack of sufficient notice in its initial response to the request to confirm one of six dates. Rather, Defendant's initial response was, “We are checking with the client,” which reasonably led Plaintiff to believe that an agreed-to date would be forthcoming.[1] Further, the Notice is limited to two topics regarding Defendant's discovery responses and does not seek the production of documents, topics that facially do not call for extensive preparation. The entire reason why Plaintiff, justifiably, had to wait to take the continued deposition was that Defendant, improperly, failed to provide full responses to discovery until December 28, 2023, more than 13 months after the discovery was propounded. The notice provided to Defendant for the continued deposition was and is reasonable in this circumstance, and any inconvenience to Defendant is entirely of its own making. Further, as the Court resets the deposition date below to January 20, 2024, Defendant will by that date have had 12 days' notice since the service of the initial notice of continued deposition, and 22 days' notice from Plaintiff's initial request to schedule the continued deposition. There is one issue created by the Amended Notice, however. The Amended Notice, served on January 10, 2024, purports to require Defendant to “provide the name and titles of the designees to Plaintiff at least ten days prior to the deposition and set forth the subject matter for which each person will testify.” Dkt. 117-1 at 24. Without making any finding on whether such a requirement is proper, in purporting to require compliance 10 days before the date of the deposition, the deposition could not, under the plain language of Plaintiff's notice, commence before January 20, 2024, a Saturday. As such, the Court sua sponte orders the deposition continued to Monday, January 22, 2024, starting at 9:00 a.m. Pacific Time, to proceed by videoconference, with Plaintiff's counsel responsible to arrange and provide technical access requirements to counsel for Defendant. The parties may agree without further order from the Court to alter that date and time if they mutually agree. Further, this order is subject to any intervening ruling by Judge Holcomb that renders the additional discovery sought by the continued deposition entirely moot. *5 For the foregoing reasons, the Application (Dkt. 117) is DENIED; however, the continued deposition of Defendant under Rule 30(b)(6) as to the topics set forth the in the Amended Notice (Dkt. 117-1 at 23-26) shall proceed on Monday, January 22, 2024, starting at 9:00 a.m. Pacific Time, to proceed by videoconference, with Plaintiff's counsel responsible to arrange and provide technical access requirements to counsel for Defendant, subject to any intervening ruling by Judge Holcomb rendering the discovery sought entirely moot. A violation of this order could result in sanctions, up to and including “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action,” “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters into evidence,” “striking pleadings in whole or in part,” “dismissing the action or proceeding in whole or in part,” “rendering a default judgment against the disobedient party,” and/or “treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.” Rule 37(b)(2)(A). The Court reminds counsel for the parties of their obligations under the Federal Rules of Civil Procedure, the Local Rules of this Court, the orders of the judicial officers overseeing this action, and the prior Order, set forth in part above. Although the Court reached the merits of the Application, it could have denied it based on the obvious failure by counsel for Defendant to make a good faith effort to resolve this dispute. For future reference to counsel for Defendant, providing notice by email that an “emergency protective order” will be sought, without even an attempt to speak with opposing counsel by telephone before 7:20 p.m. on the evening that an ex parte application is filed, regarding an event that was still eight days away that largely involved questions of scheduling, does not reflect a good faith effort to resolve a dispute. Further efforts to seek relief from the Court without a good faith effort by counsel to resolve them informally as required by the Order, the Local Rules, and the Federal Rules of Civil Procedure will result in the summary denial of any such future motion, application, or petition and may result in the imposition of sanctions against counsel. IT IS SO ORDERED. Footnotes [1] Despite this Court's direct order, set forth above, that “[f]or future discovery-related motions in this case, the moving party is ORDERED to include a declaration by counsel with the motion that attaches all correspondence between the parties regarding the issues raised in such motion,” Defendant's counsel did not include the email in which counsel advised Plaintiff that counsel was “checking with the client.”