Carolina Casualty Insurance Company v. Oahu Air Conditioning Service, Inc. et al

Filing 105

ORDER signed by Magistrate Judge Allison Claire on 1/23/15 ORDERING the Clerk to STRIKE 97 , 99 and 102 . Defendant's MOTION to COMPEL 94 , is DENIED without prejudice to its renewal in proper form. Defendant shall provide plaintiff wi th its "final" draft Joint Statement so that Plaintiff can insert its own provisions to a document that will not otherwise be altered prior to filing with the court. The hearing on Plaintiff's MOTION to COMPEL 93 , is VACATED, so that it can be re-noticed for the same date as Defendant's renewed motion.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CAROLINA CASUALTY INSURANCE
COMPANY,
Plaintiff,

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No. 2:13-cv-01378-WBS-AC

v.

ORDER

OAHU AIR CONDITIONING SERVICE,
INC. dba OAHU AIR CONDITIONING
CO., et al.,
Defendants.

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Pending before the court are cross-motions to compel: (1) plaintiff’s Amended Motion To

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Compel defendant Pacific Commercial Services LLC (“PCS”) to produce documents requested in

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plaintiff’s October 9, 2014 request for production (“RFD”); and (2) defendant PCS’s Motion to

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Compel plaintiff to produce documents requested in PCS’s March 24, 2014 first RFD, and its

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April 10, 2014 second RFD (ECF No. 94).

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I. PLAINTIFF’S MOTION TO COMPEL
On January 21, 2015, plaintiff filed a statement of discovery dispute pursuant to E.D. Cal.

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R. 251(d), setting forth its position on why it was unable to file the signed Joint Statement

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regarding its own motion to compel. ECF No. 100. Plaintiff also filed its separate Statement

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regarding the dispute, and a “Local Rule 251(d) Declaration” of David W. Tate. ECF Nos. 100

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& 103. Defendant filed a “Declaration of Christopher T. Johnson in Opposition to Plaintiff’s
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Motion To Compel.” ECF No. 98. Although this declaration is not labeled as such, the court

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interprets it to be the defendant’s Local R. 251(d) declaration.

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Plaintiff asserts that on Friday, January 16, 2015 at 11:30 a.m., its counsel, David W. Tate,

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emailed its draft joint statement to counsel for defendant PCS, Christopher T. Johnson. Tate

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Decl. (ECF No. 103) ¶ 2 & Exh. N at 40. The draft was in “Word” format, and Tate asked

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Johnson to “input PCS’ arguments and return the same to us in word format.” Tate Decl., Exh. N

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at 40.

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On Saturday, January 17, 2015, Johnson notified Tate that plaintiff’s Joint Statement was
“egregiously wrong” in that it accused defendant of non-production of certain documents,

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whereas the documents had in fact been produced. Tate Decl. ¶ 2 & Exh. N at 43. Tate

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responded that he would “take a look.” Tate Decl. ¶ 2 & Exh. N at 43.

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On the morning of January 21, 2015, Johnson emailed a signed PDF version of plaintiff’s

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Joint Statement, with defendant PCS’s portions inserted. Tate Decl. ¶ 2 & Exh. N at 48. Tate did

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not sign and file the document, however. Instead, he asked Johnson to send the completed draft

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Joint Statement in Word format so that he, Tate, could make several changes to plaintiff’s section,

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including a clarification of its original statement regarding the non-production of certain

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documents, before filing it with the court. Tate Decl. ¶ 2 & Exh. N at 47. Johnson, referring to

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Tate’s proposal as “inappropriate and sanctionable,” refused to send plaintiff a Word document

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that referred to assertions that plaintiff was planning to change before filing with the court. Tate

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Decl. Exh. N at 47.

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At this point, a bit after noon on Wednesday, January 21, 2015, this matter could easily

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and inexpensively have been resolved. Perhaps Johnson is correct that Tate should not have

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insisted that Johnson send him a Word version of a document which Tate planned to change

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before filing with the court. However, Johnson had only to ask that Tate send the modified

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version, so that Johnson could make his insertions to that document, thus solving the problem.

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And, Tate had only to offer – on his own, without a request from Johnson – to send the modified

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version. Neither side took this simple road, and instead filed a flurry of documents fighting over

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this issue, at needless expense to their respective clients. Because the solution to this problem is
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so simple, the court will simply order the parties to do it, rather than attempt to wade through

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separate documents in support of and in opposition to plaintiff’s motion to compel.

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II. DEFENDANT’S MOTION TO COMPEL
On January 21, 2015, the parties filed a Joint Statement regarding defendant’s Motion To

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Compel, in advance of the January 28, 2015 hearing on the motion. ECF No. 96. The Joint

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Statement identifies Document Requests 2, 3, 10, 13 and 23, as being at issue in defendant’s

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motion.

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The same day, the parties filed declarations in support of and in opposition to, defendant

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PCS’s motion to compel. ECF Nos. 97 (“Declaration of Christopher T. Johnson,” apparently in

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support), 99 (“Declaration of David W. Tate in Opposition”) & 102 (“Declaration of Brian Finn

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in Opposition”). None of these declarations is authorized under E.D. Cal. R. (“Local R.”) 251,

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and all will be stricken from the docket and disregarded.

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Since it makes sense to hear both cross-motions at the same time, defendant’s motion will

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be vacated so that it can be re-noticed for the same date as plaintiff’s renewed motion. The

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parties are free to amend the Joint Statement, if they wish, so that it includes material currently in

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the separately filed declarations.

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III. CONCLUSION

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For the reasons set forth above IT IS HEREBY ORDERED THAT:

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1. The Clerk of the Court shall STRIKE ECF Nos. 97, 99 and 102 from the docket.

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2. Defendant’s motion to compel (ECF No. 94), is DENIED without prejudice to its

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renewal in proper form. Defendant shall provide plaintiff with its “final” draft Joint Statement so

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that plaintiff can insert its own provisions to a document that will not otherwise be altered prior to

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filing with the court.

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3. The hearing on plaintiff’s motion to compel (ECF No. 93), is VACATED, so that it can

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be re-noticed for the same date as defendant’s renewed motion.

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DATED: January 23, 2015

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