Federal Trade Commission v. Medlab, Inc. et al

Filing 66

ORDER DENYING DEFENDANTS' DISCOVERY REQUEST re 62 . (SI, COURT STAFF) (Filed on 3/9/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. MEDLAB INC., et al., Defendants. / FEDERAL TRADE COMMISSION, Plaintiff, No. C 08-00822 SI ORDER DENYING DEFENDANTS' DISCOVERY REQUEST [Docket No. 62] IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Defendants have filed a letter brief seeking sanctions and an order compelling plaintiff to produce a second Rule 30(b)(6) witness. Defendants contend that Dean C. Graybill, plaintiff's designated Rule 30(b)(6) witness, was insufficient because he testified at deposition that he lacked knowledge to testify about various matters. The most obvious problem with defendants' request is that Mr. Graybill's deposition was taken on October 18, 2008, and defendants did not file their letter brief until February 24, 2009, the same day that they filed their opposition to plaintiff's summary judgment motion. The non-expert discovery cutoff in this case was November 14, 2008. Under Civil Local Rule 26-2, "no motions to compel fact discovery may be filed more than 7 court days after the fact discovery cut-off" unless good cause is shown. See Civ. Local R. 26-2. Defendants make no effort to explain their lengthy delay in filing their letter brief. In addition, because defendants did not file their request until the same day they filed their opposition to plaintiff's summary judgment motion, granting defendants' request at this juncture would require continuing the summary judgment hearing. Defendants do not attempt to comply with Federal Rule of Civil Procedure 56(f), which requires the party requesting such a continuance to show: "(1) it

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment. Failure to comply with these requirements is a proper ground for denying discovery and proceeding to summary judgment." Family Home & Fin. Ctr. Inc. v. Fed. Home Loan Mortgage Corp., 525 F.3d 822, 827 (9th Cir. 2008) (internal citation omitted). For these reasons, defendants' requests for an order and for sanctions are DENIED. IT IS SO ORDERED.

Dated: March 9, 2009

SUSAN ILLSTON United States District Judge

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