Ewert v. eBay, Inc.

Filing 75

ORDER re 74 to eBay, Inc. to Show Cause Why Sanctions Should Not Be Awarded Against it for Failing to Appear for its Deposition; and ORDER Advancing Hearing on Plaintiff's Motion to Compel. Signed by Judge Patricia V. Trumbull on 7/15/09. (pvtlc1) (Filed on 7/15/2009)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs erroneously noticed their motion to compel on District Judge Whyte's calendar. Pursuant to the San Jose Division's Standing Order Regarding Case Management in Civil Cases, "All disclosure or discovery disputes in cases assigned to district judges are referred to the assigned magistrate judge for determination pursuant to Fed.R.Civ.P. 72(a)." This case was assigned Magistrate Judge Patricia V. Trumbull for disclosure and discovery disputes, and thus the motion should have been noticed for her law and motion calendar which is held Tuesdays at 10:00 a.m. in courtroom 5. OR D E R, page 1 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MICHAEL EWERT, et al., ) ) Plaintiffs, ) ) v. ) ) EBAY, INC., ) ) Defendant. ) ___________________________________ ) Case No.: C 07-2198 RMW (PVT) ORDER TO EBAY, INC. TO SHOW CAUSE WH Y SANCTIONS SHOULD NOT BE AW A R D ED AGAINST IT FOR FAILING TO APPEA R FOR ITS DEPOSITION; AND ORDER ADVANCING HEARING ON PLA INT IFF'S MOTION TO COMPEL D E PO SIT IO N On July 14, 2009, Plaintiffs filed a motion to compel the deposition of Defendant eBay, Inc. ("eBay") under Rule 30(b)(6).1 Having reviewed the moving papers, the court finds it appropriate to issue this order. Based on the moving papers, IT IS HEREBY ORDERED that no later than July 28, 2009, Defendant eBay shall file a declaration showing cause why sanctions should not be awarded against it for failing to appear for its properly noticed deposition. See FED.R.CIV.PRO. 37(d)(2) (providing that a party's failure to appear for its own deposition "is not excused on the ground that the discovery sought was objectionable, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unless the party failing to [appear] has a pending motion for a protective order under Rule 26(c)."). The court is taking this step of issuing an order to show cause because Plaintiffs' moving papers did not specifically draw Defendant's attention to the Rule 37(d)(2) standard. In addition to Rule 37(d)(2), in determining what sanctions are appropriate, if any, the court will also consider whether Defendant adequately appears for its deposition before July 28, 2009. IT IS FURTHER ORDERED that the hearing on Plaintiffs' motion to compel Defendant's deposition is advanced to 10:00 a.m. on August 18, 2009 in courtroom 5 of this court. Defendant's response to this order to show cause shall be deemed to be its opposition to the motion to compel. Plaintiffs' reply shall be filed no later than August 11, 2009. Dated: 7/15/09 PATRICIA V. TRUMBULL United States Magistrate Judge OR D E R, page 2