Cats and Dogs Animal Hospital, Inc. v. Yelp! Inc.

Filing 70

Reply to Opposition re 66 Emergency MOTION to Shorten Time Relating to Motion to Compel 30(b)(6) Deposition on Monday, June 21, 2010, and Motion for SanctionsEmergency MOTION to Shorten Time Relating to Motion to Compel 30(b)(6) Deposition on Monday, June 21, 2010, and Motion for SanctionsEmergency MOTION to Shorten Time Relating to Motion to Compel 30(b)(6) Deposition on Monday, June 21, 2010, and Motion for Sanctions Reply in Support of Plaintiffs' Motion to Compel 30(b)(6) Deposition and for Sanctions filed byCats and Dogs Animal Hospital, Inc.. (Attachments: # 1 Declaration of Elizabeth Lee Beck in Support of Plaintiffs' Motion to Compel 30(b)(6) Deposition and for Sanctions)(Fitzgerald, John) (Filed on 6/23/2010)

Cats and Dogs Animal Hospital, Inc. v. Yelp! Inc.

Doc. 70

1 THE WESTON FIRM GREGORY S. WESTON (239944) 2 888 Turquoise Street San Diego, CA 92109 3 Telephone: [phone] Facsimile: [phone] [e-mail] 5 JACK FITZGERALD (257370) 6 2811 Sykes Court Santa Clara, CA 95051 7 Telephone: [phone] [e-mail] 9 BECK & LEE BUSINESS TRIAL LAWYERS JARED H. BECK (233743) 10 ELIZABETH LEE BECK (233742) Courthouse Plaza Building 11 28 West Flagler Street, Suite 555 12 Miami, FL 33130 Telephone: [phone] Facsimile: [phone] [e-mail] 14 [e-mail] 15 16 17 Attorneys for Plaintiffs and the Proposed Classes UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. 3:10-cv-02351 MHP Pleading Type: Class Action Action Filed: February 23, 2010 PLAINTIFFS' REPLY IN SUPPORT OF MOTION TO COMPEL 30(B)(6) DEPOSITION AND FOR SANCTIONS Judge: The Hon. Marilyn Hall Patel Date: Monday, July 26, 2010 Time: 2:00 p.m. Location: Courtroom 15, 18th Floor

18 CATS AND DOGS ANIMAL HOSPITAL, INC.; ASTRO APPLIANCE SERVICE; 19 BLEEDING HEART, LLC; CALIFORNIA FURNISHINGS, INC.; CELIBRÉ, INC.; J.L. 20 FERRI ENTERTAINMENT, INC.; LE 21 PETITE RETREAT DAY SPA, LLC; SAN FRANCISCO BAY BOAT CRUISES, LLC; 22 WAG MY TAIL, INC.; and ZODIAC RESTAURANT GROUP, INC., on behalf of 23 themselves and all others similarly situated, 24 25 26 27 v. YELP! INC., Defendant. Plaintiffs,

Cats and Dogs Animal Hospital, Inc.et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP PLAINTIFFS' REPLY IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS
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Plaintiffs, CATS AND DOGS ANIMAL HOSPITAL, INC.; ASTRO APPLIANCE

2 SERVICE; BLEEDING HEART, LLC; CALIFORNIA FURNISHINGS, INC.; CELIBRÉ, 3 INC.; J.L. FERRI ENTERTAINMENT, INC.; LE PETITE RETREAT DAY SPA, LLC; SAN 4 FRANCISCO BAY BOAT CRUISES, LLC; WAG MY TAIL, INC.; and ZODIAC 5 RESTAURANT GROUP, INC. (collectively, "Plaintiffs") submit this Reply in support of their 6 Motion for Sanctions concerning Yelp's last-minute failure to produce its corporate 7 representative for deposition, and to address several points raised in Yelp's Opposition. 8 First, Plaintiffs served Yelp with the deposition notice on May 5, 2010, while the case

9 was still pending in the Central District of California, and 23 days before the transfer to this 10 Court occurred. Unlike this District, the Central District of California does not require the

11 parties to meet and confer on scheduling issues before serving a deposition notice. Thus, Local 12 Rule 30-1's meet-and-confer requirement does not govern the deposition notice. 13 Second, once Plaintiffs served the deposition notice on May 5th, it was squarely Yelp's

14 burden to advise Plaintiffs of any scheduling problems or objections reasonably in advance of the 15 noticed date. Had Yelp done so, Plaintiffs would have discussed any of Yelp's substantive 16 objections as well as an alternative, mutually convenient date. 1 Instead, Yelp waited until a scant 17 three business days before the noticed date to advise Plaintiffs of its intention not to attend the 18 deposition. 2 Yelp's failure to contact Plaintiffs up until then was plainly a "sharp" litigation 19 tactic designed to maximize the chance that Plaintiffs' counsel would incur costs in making their 20 travel arrangements. 3 21 22 Because the scheduled deposition date has passed, and along with it the emergency basis of Plaintiffs' Motion to Compel, Plaintiffs hereby respectfully request through the instant motion 23 that the Court award them fees and costs, and order Yelp to produce its corporate representative 24 on a date certain. 2 Several weeks after the deposition notice was served, Plaintiffs served document requests and 25 interrogatories on Yelp, to which Yelp has already fully responded. Yelp similarly served 26 Plaintiffs with 120 interrogatories and 510 document requests. This is inconsistent with Yelp's claim that Plaintiffs knew "Yelp's position was that such discovery should await the Court's 27 rulings on the issue of consolidation." (Opp. at 5 n.5). 28
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Yelp accuses Plaintiffs of "tactical" conduct because their counsel, Elizabeth Lee Beck, attended a 90-second hearing in another matter on the morning of June 21st in San Jose, the 1 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP PLAINTIFFS' REPLY IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS

1 2 Third, Yelp is incorrect that Plaintiffs did not meet and confer prior to filing their motion

3 (Opp. at 4). As discussed in their opening brief, promptly after Yelp announced on June 16th that 4 it would not appear on June 21st, Plaintiffs contacted Yelp offering to accommodate Yelp on 5 any issues relating to time or location to ensure that the deposition would go forward. (Mot. at 2). 6 Yelp responded, asserting that "it was premature to move forward with depositions . . . ." (Mot. 7 at 2) Having met and conferred on the substantive issue, Plaintiffs further sought, pursuant to 8 Local Rule 6-3(a)(2), Yelp's stipulation on a shortening of time (Brown Decl. ¶ 2, Ex. A.) That 9 email properly requested a response within two hours owing to the emergency nature of the 10 proposed motion, which Plaintiffs needed to file the same day in hopes that it would be heard by 11 the Court in time to direct that the deposition proceed on the noticed date. 4 4 12 13 14 15 16 17 18 19 20 Monday when the deposition was supposed to take place. (Opp. Mem. at 5 n.5). In fact, the necessity of covering conflicting obligations in two different cases venued in the Northern 21 District of California being jointly litigated by the two Plaintiffs' firms was the reason Ms. Beck and her law partner, Jared Beck, booked plane tickets from Florida to San Francisco in the first 22 place. After Yelp indicated it had no intention of complying with the deposition notice, and rather than letting the ticket go to waste, Ms. Beck joined her California-based co-counsel, 23 Gregory Weston and Jack Fitzgerald, in the Northern District's San Jose Division for purposes of 24 announcing that the parties had reached a settlement in Red v. Unilever United States, Inc., Case No. 10 CV 00387 (N.D. Cal.). Had the deposition gone forward as noticed, Ms. Beck and Mr. 25 Beck would have deposed Yelp in San Francisco, while Mr. Weston and Mr. Fitzgerald covered the Unilever hearing on their own in San Jose. See Declaration of Elizabeth Lee Beck ¶¶ 2-5. 26 While Local Rule 6-3 provides a default opposition time of four days, that period can be 27 shortened by order, see L.R. 6-3(c). Accordingly, Plaintiffs properly sought an order that Yelp file an opposition, if at all, on June 17th, so that the Court could order the deposition to take 28 place on June 21st. 2 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP PLAINTIFFS' REPLY IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS

1 Respectfully Submitted, 2 3 4 /s/ Jack Fitzgerald Jack Fitzgerald

THE WESTON FIRM 5 GREGORY S. WESTON 888 Turquoise Street 6 San Diego, CA 92109 Telephone: [phone] Facsimile: [phone] 8 [e-mail] 9 JACK FITZGERALD 2811 Sykes Court 10 Santa Clara, CA 95051 Telephone: [phone] [e-mail] 12 BECK & LEE BUSINESS TRIAL LAWYERS 13 JARED H. BECK ELIZABETH LEE BECK 14 Courthouse Plaza Building 28 West Flagler Street, Suite 555 15 Miami, FL 33130 16 Telephone: [phone] Facsimile: [phone] 17 [e-mail] [e-mail] 18 Attorneys for Plaintiffs and the Proposed Classes 19 20 21 22 23 24 25 26 27 28 3 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP PLAINTIFFS' REPLY IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS