Rodman v. Safeway, Inc.

Filing 374

ORDER re 371 Letter filed by Michael Rodman. Signed by Judge Jon S. Tigar on October 2, 2015. (wsn, COURT STAFF) (Filed on 10/2/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL RODMAN,

Case No. 11-cv-03003-JST

Plaintiff,
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ORDER

v.

Re: ECF No. 371

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SAFEWAY INC.,
Defendant.

United States District Court
Northern District of California

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This is a further order regarding defendant Safeway, Inc.’s recent late production of

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documents. See ECF No. 373. The parties previously filed a joint letter brief, requesting

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competing forms of relief related to Safeway’s late disclosure. ECF No. 371. The Court has

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already ruled on the disputed issue of a trial continuance, determining that a continuance was

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necessary to allow the parties to conduct additional discovery related to the late-produced

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documents, incorporate that discovery into their trial presentations, and present any disputes

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related to this newly-acquired information to the Court before jury selection. ECF No. 373.

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Turning to the parties’ remaining disputes, the Court now rules as follows:

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1.

The parties have agreed to further depositions of Mr. Guthrie and Mr. Hensley, but

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disagree as to the scope. The Court orders that either party may inquire at deposition regarding the

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newly produced documents; any additional documents or evidence produced between September

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29, 2015 and the date of the deposition; and the effect of those documents or evidence on the

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witness’ prior written or oral testimony or Safeway’s or the witness’s discovery responses as they

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relate to Topics 5, 6(b), 6(d), and 6(e) of the Revised Notice of Rule 30(b)(6) Deposition which is

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Plaintiff’s Trial Exhibit 105.

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2.

The Court will defer any questions regarding the authenticity and admissibility of

the ten newly-produced documents, as well as any other subsequently produced evidence, until the

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further pre-trial conference on November 30, 2015.
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Regarding the additional search from the “legacy computer drive,” by October 8,

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2015, the parties shall either notify the Court that they have agreed on a search protocol or submit

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competing search protocols in the form of competing draft orders.

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4.

The Court notes that the parties have agreed that Safeway will review its prior

discovery responses and either supplement these responses in light of the newly produced

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documents or confirm that Safeway has determined that no such supplementation is necessary.

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Likewise, the parties have agreed that Mr. Guthrie will review his prior declarations and either

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supplement these declarations in light of the newly produced documents or confirm that he has

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determined that no such supplementation is necessary. The parties should set a deadline for the

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United States District Court
Northern District of California

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completion of this task by October 8, 2015 and confirm the deadline with each other in writing. It

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is not necessary to file such agreement with the Court. If they cannot agree on a deadline, they

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should submit competing proposed orders to the Court by October 8.

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5.

The Court notes that the parties have agreed that Plaintiff may present testimony at

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trial from the new witnesses reflected in the newly-produced documents and/or underlying

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metadata (including Mr. Warr, Mr. Hoopes, Mr. Tobin, Mr. Lillard, and Mr. Nathan), as well as

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any other witnesses whose identity is revealed through subsequent discovery. The Court does not

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adopt Plaintiff’s proposed limitation regarding the scope of Safeway’s presentation of new

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testimony from these witnesses. See ECF No. 371 at 11. Either side may present any evidence,

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favorable or unfavorable, that he or it gathers during the court-ordered period of discovery.

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6.

The Court finds that Mr. Falsken should now be permitted to testify at trial. The

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Court’s previous order granting Safeway’s Motion in Limine No. 3 to exclude testimony from

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Falsken relied in part on the Court’s conclusion that Safeway would be incurably prejudiced if the

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Court permitted Falsken to testify because insufficient time remained for Safeway to take

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Falsken’s deposition. ECF No. 354 at 4. Now that trial has been re-calendared for December 7,

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2015, Safeway can take Falsken’s deposition and conduct other formal and informal discovery to

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respond to Falsken’s testimony. The Court also considers that the existence of a new period of

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court-ordered discovery was caused by Safeway’s late production of material evidence.
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7.

The Court denies Plaintiff’s unopposed request to file a renewed motion for

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summary judgment. Plaintiff previously filed a second summary judgment motion regarding

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Safeway’s liability to class members who registered to shop in the online store prior to 2006

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without first seeking leave of the Court, which the Court nonetheless considered. ECF No. 331 at

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26–27. Plaintiff has already used up more than his allotment of the Court’s summary judgment

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resources. Moreover, given that the taking of evidence at trial will not last more than two days,

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permitting another motion for summary judgment is not the most efficient use of the parties’ or the

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Court’s resources, particularly since the parties and the Court will still be left with a trial if the

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motion is denied.

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8.

The Court notes that Safeway has agreed to provide Plaintiff with additional

United States District Court
Northern District of California

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metadata relating to the newly-discovered documents that may be on the “legacy” server.

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Safeway has also agreed to provide Plaintiff with the dates on which Mr. Guthrie located the

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newly-discovered documents. ECF No. 371 at 17. The parties should set a deadline for the

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completion of these tasks by October 8, 2015 and confirm the deadline with each other in writing.

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It is not necessary to file such agreement with the Court. If they cannot agree on a deadline, they

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should submit competing proposed orders to the Court by October 8.

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IT IS SO ORDERED.
Dated: October 2, 2015
______________________________________
JON S. TIGAR
United States District Judge

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