Kristine Livingston et al v. Kempersports Management, Inc.

Filing 35

ORDER re Discovery Dispute. ORDER Setting Telephonic Conference for 11/12/2013, at 04:00 PM before Magistrate Judge Sheila K. Oberto. The parties shall initiate one joint conference call at the time and date for the informal telephonic status conference. Order signed by Magistrate Judge Sheila K. Oberto on 11/1/2013. (Timken, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KRISTINE LIVINGSTON, et al. Case No. 1:12-cv-01427-LJO-SKO Plaintiffs, 11 ORDER RE DISCOVERY DISPUTE 12 v. 13 14 15 16 KEMPERSPORTS MANAGEMENT, INC., ORDER SETTING TELEPHONIC CONFERENCE FOR NOVEMBER 12, 2013, AT 4:00 p.m. Defendant. _____________________________________/ 17 18 On September 4, 2013, Defendant Kempersports Management, Inc. ("Defendant") filed a 19 motion to compel seeking an order requiring Plaintiffs to serve further responses to Defendant's 20 requests for production of documents, special interrogatories, a request for production of 21 documents and inspection of tangible things, and seeking to compel the deposition of Plaintiff 22 Kristine Livingston. (Doc. 27.) 23 The parties agreed to resolve the dispute via informal telephonic conference, which was 24 held on October 9, 2013. Following the informal telephone conference, the Court issued an order 25 on October 9, 2013, setting forth the resolution of various issues and outlining the parties’ further 26 obligations. A further telephonic conference was set for October 23, 2013, which was continued 27 to October 31, 2013, as Plaintiffs had not fully complied with the Court’s October 9, 2013, order 28 and the parties had not submitted the required joint statement. 1 On October 31, 2013, the parties appeared for two telephonic conferences. At both 2 conferences, Dean Gordon, Esq., appeared for Plaintiffs and Michael Burns, Esq., and Matthew 3 Mason, Esq., appeared for Defendant. The following issues were discussed and decided during 4 the telephonic conferences.1 5 1. 6 Kristine Livingston's deposition shall take place on November 7, 2013, in Idaho. In light Deposition of Kristine Livingston 7 of Plaintiffs’ continued delay in providing the requested computer information related to 8 documents purportedly authored by Mark Livingston and modified by Kristine Livingston, 9 Defendant shall have a total of ten (10) hours to complete this deposition. Defendant may 10 allocate this time as it deems appropriate with respect to reserving time to continue the deposition 11 after Kristine Livingston's computer has been mirror imaged and the relevant contents (as set forth 12 below) have been reviewed. The parties shall discuss the format and location of any continued 13 portion of the deposition. 14 2. 15 Despite the fact that Defendant’s request for metadata and inspection of Plaintiffs’ Forensic Review of Computer Hard Drive 16 computer has been pending since May 2013, Plaintiffs’ expert has been unable to recover 17 metadata from Kristine Livingston's computer pertaining to two documents which were 18 purportedly created by Mark Livingston. As such, Plaintiffs are unable to accurately determine 19 the creation date of these documents or whether, and in what respects, these documents have been 20 modified. As Plaintiffs intend to admit these documents during trial, the hard drive of Kristine 21 Livingston's computer shall be mirror-imaged to provide Defendant with information relevant to 22 the creation and modification of these particular documents. Plaintiffs' counsel shall verify whether a mirror image of Kristine Livingston’s computer 23 24 has already been created. If no mirror image exists, Plaintiff’s expert shall create a mirror image 25 of the hard drive by no later than November 6, 2013.2 Meanwhile, by November 4, 2013, the 26 parties are to discuss and propose a plan for either their respective experts or a neutral expert to 27 1 2 28 The factual background is well-known to the parties and will not be set forth in this order. Defendant shall pay for the actual cost of the hard drive. 2 1 review the mirror image of the hard drive and to obtain the metadata for these documents. 2 Further, with respect to the duplicate document produced by Plaintiffs bates stamped 3 LIV00054 and LIV00069 and entitled "Teresa Tillima time clock violation," Plaintiffs have 4 confirmed that neither the author nor the date and time of creation of the document can be 5 established. Due to Plaintiffs’ continued inability to produce discovery necessary to verify the 6 source and creation date of the document, this document is hereby EXCLUDED from use at trial. 7 Fed. R. Civ. P. 37(b)(2)(A). 8 3. 9 The Court's order of October 9, 2013, stated that objections and privileges were waived as Documents Responsive to Requests for Production of Documents 10 to a number of Defendant's Requests for Production of Documents ("RFPs") because no privilege 11 or objection was expressly stated. Plaintiffs were ordered to provide supplemental responses no 12 later than October 18, 2013. Plaintiffs failed to meet this deadline. 13 In their October 29, 2013, Joint Statement, Plaintiffs indicated that they are determining 14 whether there are documents responsive to a discovery request for which the Court determined 15 any privilege had been waived for Plaintiffs’ failure to assert such privilege. In the Joint 16 Statement, Plaintiffs' counsel further stated he anticipated producing all such documents by 17 October 30, 2013. However, no such documents had been produced as of the October 31, 2013, 18 telephone conference date. As such, Plaintiffs must produce any responsive documents no later 19 than November 5, 2013, or risk sanctions for repeated failure to comply with the Court’s order. 20 21 22 4. Special Interrogatories Nos. 6 and 7 to Plaintiffs as Successors-In-Interest re Mark Livingston's Family History of Heart Attacks/ Heart-Related Health Issues By no later than November 6, 2013, Plaintiffs, as successors-in-interest, are to provide 23 complete and verified responses indicating whether they are aware of any blood relative of Mark 24 Livingston who suffers, or has suffered, from a heart condition/illness or a heart-related 25 condition/illness. The responses must indicate whether Wesley or Jason Livingston themselves 26 suffer from any heart condition/illness or heart-related condition/illness, and both Wesley and 27 Jason Livingston must verify the response. 28 /// 3 1 5. Special Interrogatories Nos. 1-3 to Jason and Wesley Livingston re Health Care 2 3 The Court finds that these interrogatories require no further response by Plaintiffs. The 4 interrogatories are subsumed by the special interrogatory to the Plaintiffs as successors-in-interest, 5 which is more narrowly tailored to protect the individual privacy interests raised by Plaintiffs. To 6 the extent that Wesley and/or Jason Livingston indicate that they currently have or have had heart 7 conditions/illnesses or heart-related conditions/illness, the scope of any production of medical 8 records will be revisited at that time. 9 10 6. Request for Production No. 103 to Jason Livingston Jason Livingston must provide a verified response to this RFP no later than November 6, 11 2013. 12 7. Facebook Social Media Production 13 Where Facebook or other social media messages and posts are responsive to discovery 14 requests, Plaintiffs are to provide a copy of that message or post in its original format, with 15 manual redactions as necessary to preserve privileged information. Amended responses are due 16 no later than November 6, 2013. 17 8. Statement of Efforts to Obtain Responsive Documents 18 Plaintiffs shall provide a statement of the efforts undertaken to search for and obtain 19 responsive documents; a general statement that a search was conducted is insufficient. 20 Additionally, Plaintiffs are to describe the search for responsive emails with respect to the email 21 account This statement must be provided to Defendant no later than 22 November 6, 2013. 23 9. Verifications 24 Plaintiffs indicate that verification of the discovery responses have been obtained from 25 Kristine and Wesley Livingston, but no verification from Jason Livingston is available. Jason 26 Livingston shall provide a verification of the discovery responses no later than November 6, 27 2013. 28 // 4 1 10. 2 The parties shall comply with the deadlines set in this order. If the parties fail to meet Mandatory Compliance 3 these deadlines, a formal hearing will be set to show cause why sanctions should not be imposed 4 on the noncomplying party pursuant to the Court's inherent power to manage its docket and to 5 enforce its orders. 6 11. 7 A further telephonic conference is SET for Tuesday, November 12, 2013, at 4:00 p.m. Further Telephonic Conference 8 The parties shall initiate one joint conference call at the time and date for the informal telephonic 9 status conference. 10 11 12 IT IS SO ORDERED. Dated: November 1, 2013 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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