Nutrition Distribution, LLC v. Enhanced Athlete, Inc.
ORDER signed by District Judge Troy L. Nunley on 10/10/17 ORDERING that Defendant's Ex Parte Application for Expedited Discovery 9 is DENIED. (Mena-Sanchez, L)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
NUTRITION DISTRIBUTION, LLC, an
Arizona limited liability company,
ORDER DENYING EX PARTE
APPLICATION FOR EXPEDITED
ENHANCED ATHLETE, INC., a
This matter is before the Court on Defendant Enhanced Athlete Inc.’s (“Defendant”) Ex
Parte Application for Expedited Discovery to respond to Plaintiff Nutrition Distribution, LLC’s
(“Plaintiff”) Motion for Injunctive Relief and Sanctions. (ECF No. 9.) Plaintiff opposes the
request. (ECF No. 11.)
In its motion for injunctive relief and sanctions, Plaintiff asserts Defendant invited its
customers to make threatening and harassing phone calls to the law firm and attorney
representing it in this case. (See ECF No. 8.) Plaintiff submitted emails and telephone calls from
individuals to the Court in connection with its motion. (See ECF Nos. 8-2–8-14.) Defendants
contend that all of the evidence of harassing communications is uniquely in Plaintiff’s possession
and seeks discovery of all such communications. (ECF No. 9 at 7.) Defendants also seek to
depose Plaintiff’s attorney, Robert Tauler, to discuss the communications received and any events
that could have occurred, but did not. (ECF No. 9 at 11.) Finally, Defendants seek to depose a
Rule 30(b)(6) witness of Tauler Smith LLP. (ECF No. 9 at 11.) Plaintiff asserts it submitted all
the communications Defendant seeks to the Court as exhibits to its motion. (ECF No. 11 at 3–4.)
Plaintiff further contends Defendant has not demonstrated good cause to depose Plaintiff’s
attorney or members of his firm.
As to Defendants request for discovery of communications, Plaintiff submitted a
declaration of Plaintiff’s Attorney Robert Tauler. Under penalty of perjury, Tauler declared that
he “submitted all evidence in [his] possession in the Motion for Sanctions filing.” (ECF No. 11-1
¶ 4.) The Court has no reason to believe that Tauler has perjured himself. Accordingly,
Defendant fails to demonstrate good cause for expedited discovery of all communications as
Defendant has access to them on the docket.
As to Defendant’s request to depose Robert Tauler and a Rule 30(b)(6) witness of Tauler
Smith LLP, Defendant has failed to meet the standard to depose a party’s attorney. Depositions
of opposing counsel shall be limited to a showing that: (1) no other means exists to obtain the
information than to depose opposing counsel; (2) the information sought is relevant and
nonprivileged; and (3) the information is crucial to the preparation of the case. Shelton v.
American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). Defendant seeks to depose Tauler
on “the communications and asserted disruption to Tauler Smith.” (ECF No. 9 at 11.) As Robert
Tauler’s declaration states, Tauler Smith submitted all communications to the Court on the
docket. Accordingly, there is another means by which Defendant may gain and in fact has
already gained the necessary information.
For the above stated reasons, Defendants have failed to demonstrate good cause exists for
expedited discovery. Accordingly, Defendant’s Ex Parte Application (ECF No. 9) is hereby
IT IS SO ORDERED.
Dated: October 10, 2017
Troy L. Nunley
United States District Judge
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