Nutrition Distribution, LLC v. Enhanced Athlete, Inc.

Filing 19

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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NUTRITION DISTRIBUTION, LLC, an
Arizona limited liability company,
Plaintiff,

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No. 2:17-cv-01491-TLN-KJN

ORDER DENYING EX PARTE
APPLICATION FOR EXPEDITED
DISCOVERY

v.
ENHANCED ATHLETE, INC., a
Wyoming corporation,
Defendant.

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This matter is before the Court on Defendant Enhanced Athlete Inc.’s (“Defendant”) Ex

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Parte Application for Expedited Discovery to respond to Plaintiff Nutrition Distribution, LLC’s

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(“Plaintiff”) Motion for Injunctive Relief and Sanctions. (ECF No. 9.) Plaintiff opposes the

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request. (ECF No. 11.)

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In its motion for injunctive relief and sanctions, Plaintiff asserts Defendant invited its

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customers to make threatening and harassing phone calls to the law firm and attorney

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representing it in this case. (See ECF No. 8.) Plaintiff submitted emails and telephone calls from

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individuals to the Court in connection with its motion. (See ECF Nos. 8-2–8-14.) Defendants

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contend that all of the evidence of harassing communications is uniquely in Plaintiff’s possession

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and seeks discovery of all such communications. (ECF No. 9 at 7.) Defendants also seek to

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depose Plaintiff’s attorney, Robert Tauler, to discuss the communications received and any events
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that could have occurred, but did not. (ECF No. 9 at 11.) Finally, Defendants seek to depose a

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Rule 30(b)(6) witness of Tauler Smith LLP. (ECF No. 9 at 11.) Plaintiff asserts it submitted all

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the communications Defendant seeks to the Court as exhibits to its motion. (ECF No. 11 at 3–4.)

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Plaintiff further contends Defendant has not demonstrated good cause to depose Plaintiff’s

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attorney or members of his firm.

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As to Defendants request for discovery of communications, Plaintiff submitted a

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declaration of Plaintiff’s Attorney Robert Tauler. Under penalty of perjury, Tauler declared that

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he “submitted all evidence in [his] possession in the Motion for Sanctions filing.” (ECF No. 11-1

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¶ 4.) The Court has no reason to believe that Tauler has perjured himself. Accordingly,

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Defendant fails to demonstrate good cause for expedited discovery of all communications as

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Defendant has access to them on the docket.

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As to Defendant’s request to depose Robert Tauler and a Rule 30(b)(6) witness of Tauler

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Smith LLP, Defendant has failed to meet the standard to depose a party’s attorney. Depositions

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of opposing counsel shall be limited to a showing that: (1) no other means exists to obtain the

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information than to depose opposing counsel; (2) the information sought is relevant and

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nonprivileged; and (3) the information is crucial to the preparation of the case. Shelton v.

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American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). Defendant seeks to depose Tauler

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on “the communications and asserted disruption to Tauler Smith.” (ECF No. 9 at 11.) As Robert

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Tauler’s declaration states, Tauler Smith submitted all communications to the Court on the

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docket. Accordingly, there is another means by which Defendant may gain and in fact has

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already gained the necessary information.

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For the above stated reasons, Defendants have failed to demonstrate good cause exists for

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expedited discovery. Accordingly, Defendant’s Ex Parte Application (ECF No. 9) is hereby

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DENIED.

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IT IS SO ORDERED.
Dated: October 10, 2017

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Troy L. Nunley
United States District Judge