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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 NUTRITION DISTRIBUTION, LLC, an Arizona limited liability company, Plaintiff, 13 14 15 16 No. 2:17-cv-01491-TLN-KJN ORDER DENYING EX PARTE APPLICATION FOR EXPEDITED DISCOVERY v. ENHANCED ATHLETE, INC., a Wyoming corporation, Defendant. 17 18 This matter is before the Court on Defendant Enhanced Athlete Inc.’s (“Defendant”) Ex 19 Parte Application for Expedited Discovery to respond to Plaintiff Nutrition Distribution, LLC’s 20 (“Plaintiff”) Motion for Injunctive Relief and Sanctions. (ECF No. 9.) Plaintiff opposes the 21 request. (ECF No. 11.) 22 In its motion for injunctive relief and sanctions, Plaintiff asserts Defendant invited its 23 customers to make threatening and harassing phone calls to the law firm and attorney 24 representing it in this case. (See ECF No. 8.) Plaintiff submitted emails and telephone calls from 25 individuals to the Court in connection with its motion. (See ECF Nos. 8-2–8-14.) Defendants 26 contend that all of the evidence of harassing communications is uniquely in Plaintiff’s possession 27 and seeks discovery of all such communications. (ECF No. 9 at 7.) Defendants also seek to 28 depose Plaintiff’s attorney, Robert Tauler, to discuss the communications received and any events 1 1 that could have occurred, but did not. (ECF No. 9 at 11.) Finally, Defendants seek to depose a 2 Rule 30(b)(6) witness of Tauler Smith LLP. (ECF No. 9 at 11.) Plaintiff asserts it submitted all 3 the communications Defendant seeks to the Court as exhibits to its motion. (ECF No. 11 at 3–4.) 4 Plaintiff further contends Defendant has not demonstrated good cause to depose Plaintiff’s 5 attorney or members of his firm. 6 As to Defendants request for discovery of communications, Plaintiff submitted a 7 declaration of Plaintiff’s Attorney Robert Tauler. Under penalty of perjury, Tauler declared that 8 he “submitted all evidence in [his] possession in the Motion for Sanctions filing.” (ECF No. 11-1 9 ¶ 4.) The Court has no reason to believe that Tauler has perjured himself. Accordingly, 10 Defendant fails to demonstrate good cause for expedited discovery of all communications as 11 Defendant has access to them on the docket. 12 As to Defendant’s request to depose Robert Tauler and a Rule 30(b)(6) witness of Tauler 13 Smith LLP, Defendant has failed to meet the standard to depose a party’s attorney. Depositions 14 of opposing counsel shall be limited to a showing that: (1) no other means exists to obtain the 15 information than to depose opposing counsel; (2) the information sought is relevant and 16 nonprivileged; and (3) the information is crucial to the preparation of the case. Shelton v. 17 American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). Defendant seeks to depose Tauler 18 on “the communications and asserted disruption to Tauler Smith.” (ECF No. 9 at 11.) As Robert 19 Tauler’s declaration states, Tauler Smith submitted all communications to the Court on the 20 docket. Accordingly, there is another means by which Defendant may gain and in fact has 21 already gained the necessary information. 22 For the above stated reasons, Defendants have failed to demonstrate good cause exists for 23 expedited discovery. Accordingly, Defendant’s Ex Parte Application (ECF No. 9) is hereby 24 DENIED. 25 26 IT IS SO ORDERED. Dated: October 10, 2017 27 28 2 Troy L. Nunley United States District Judge

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