Kristine Livingston et al v. Kempersports Management, Inc.

Filing 43

ORDER on Parties' Discovery Dispute Following Telephone Conference, signed by Magistrate Judge Sheila K. Oberto on 1/24/2014. (Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KRISTINE LIVINGSTON, et al.

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Plaintiffs,

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v.

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ORDER ON PARTIES’ DISCOVERY
DISPUTE FOLLOWING TELEPHONE
CONFERENCE

KEMPERSPORTS MANAGEMENT, INC.,

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Case No. 1:12-cv-01427-LJO-SKO

Defendant.
_____________________________________/

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On January 23, 2014, the parties appeared telephonically for an informal discovery

21 conference. Dean Gordon, Esq., appeared on behalf of Plaintiffs; Michael Burns, Esq., and
22 Matthew Mason, Esq., appeared on behalf of Defendant. The Court issues the following order
23 regarding the parties’ dispute following the telephone conference.
24 Mark Livingston “Declaration”
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The parties are in agreement regarding the use of the “declaration” of Mark Livingston at

26 trial. Therefore, Defendant's request to inspect Kristine Livingston's computer regarding that
27 document is moot.
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1 Kristine Livingston “Declaration”
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There are allegedly two purported versions of the "declaration" of Kristine Livingston.

3 The parties were unable to reach an agreement regarding the use of those documents at trial.
4 Therefore, Defendant is entitled to inspect Kristine Livingston's computer with respect to those
5 documents and any documents or evidence related to the creation, editing, or altering of her
6 "declarations."

Plaintiff advised the Court that he has obtained a mirror image of Kristine

7 Livingston's computer and he will send it to a neutral expert agreed to by the parties, who will
8 review the mirror image to recover any metadata or other electronic information regarding those
9 documents. The neutral expert’s review of the hard drive shall be completed by January 29, 2014,
10 and the data recovered relating to these documents shall be delivered to defense counsel by no
11 later than Friday, January 31, 2014.
12 Teresa Tillima “Declaration”
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Duplicate documents bates stamped LIV00054 and LIV00069 entitled "Teresa Tillima

14 declaration" were excluded by prior order of the Court.

Specifically, on October 9, 2013,

15 Plaintiffs were ordered to have their expert obtain the metadata regarding these documents as
16 requested by Defendant by no later than October 16, 2013. Plaintiffs' expert was unable to recover
17 any metadata and Plaintiffs failed to provide a report prepared by their expert to Defendant until
18 October 17, 2013. Part of the metadata sought included information regarding the creation of
19 document LIV00054 and LIV00069. Due to the fact that Plaintiffs were late in producing a report
20 from their expert regarding the metadata and because Plaintiffs represented they had no way to
21 verify the source or creation of these documents, the Court ordered as follows:
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With respect to the duplicate document produced by Plaintiffs bates stamped
LIV00054 and LIV00069 and entitled "Teresa Tillima time clock violation,"
Plaintiffs have confirmed that neither the author nor the date and time of creation of
the document can be established. Due to Plaintiffs' continued inability to produce
discovery necessary to verify the source and creation date of the document, this
document is hereby EXCLUDED from use at trial. Fed. R. Civ. P. 37(b)(2)(A).

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Metadata was also sought regarding the "declarations" of Mark and Kristine Livingston, but at a subsequent
conference, the parties appeared to have reached agreement regarding the use of those documents thus mooting the

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The exclusion of these duplicate documents was imposed as a discovery sanction for

2 Plaintiffs' failure to produce metadata or an expert report timely, as ordered under Rule 37(a). At
3 the January 23, 2014, conference Plaintiffs asked the Court to reconsider this exclusion sanction
4 because they have discovered circumstantial evidence regarding the source of this document and
5 wish to attempt to introduce the document at trial.
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This discovery sanction will not be reconsidered absent a showing that Plaintiffs exercised

7 reasonable diligence in discovering previously unavailable evidence regarding the date and time of
8 creation of these duplicate documents. See generally Ottovich v. City of Fremont, No. C 09-4184
9 MMC, 2013 WL 3245162, * 3 (N.D. Cal. June 26, 2013); see also All Hawaii Tours Corp. v.
10 Polynesian Cultural Center, 116 F.R.D. 645, 648 (D. Hawaii 1977), reversed on other grounds,
11 855 F.2d 860. Plaintiffs may seek electronic data related to these duplicate documents from the
12 mutually agreed upon expert. To the extent that there is any such data that bears any relation to
13 documents bates stamped LIV00054 and LIV00069, it shall be provided to Defendant no later
14 than January 31, 2014.

Notwithstanding the foregoing, duplicate documents bates stamped

15 LIV00054 and LIV00069 shall remain EXCLUDED as a discovery sanction unless Plaintiff
16 makes the necessary showing for reconsideration of that sanction on or before February 5, 2014.
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IT IS SO ORDERED.
Dated:

January 24, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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28 need for the discovery inspection request propounded by Defendant as pertaining to those documents and negating an
exclusionary sanction as to those documents.

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