Raynal et al v. National Audubon Society, Inc.

Filing 49

ORDER GRANTING PLAINTIFFS' REQUEST TO DEPOSE NONPARTIES 44 . Signed by Judge Nathanael M. Cousins on 4/30/12. (nclc1, COURT STAFF) (Filed on 4/30/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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MICHAEL RAYNAL and others,

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Plaintiffs,
v.
NATIONAL AUDUBON SOCIETY,
INC.,

Case No. 11-cv-05599 NC
ORDER GRANTING PLAINTIFFS’
REQUEST TO DEPOSE NONPARTIES
ROBERT CURTIS AND BRIAN CURTIS
Re: Dkt. No. 44

Defendant.

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The parties filed a joint discovery letter in which plaintiffs request leave to depose

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nonparties Robert Curtis and Brian Curtis on May 7 and May 9, 2012, arguing that the

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depositions are necessary to their opposition of Audubon’s anti-SLAPP motion. Audubon

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opposes the request, arguing that discovery in this action should be stayed until plaintiffs file a

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“viable” amended complaint and the Court resolves Audubon’s anti-SLAPP motion. Because the

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testimony plaintiffs seek to take is essential to plaintiffs’ opposition of Audubon’s anti-SLAPP

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motion, plaintiffs’ request is GRANTED.

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The Ninth Circuit has held that when an anti-SLAPP motion is pending in federal court,

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Federal Rule of Civil Procedure 56(d) applies to motions for discovery. See Freeman v. ABC

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Legal Services Inc. —F.Supp.2d—, No. 11-cv-3007 EMC, 2011 WL 6090699, at *3 (N.D. Cal.
Case No. 11-cv-05599 NC
ORDER GRANTING REQUEST TO
DEPOSE NONPARTIES

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Nov. 10, 2011) (holding that “in the context of an anti-SLAPP motion filed in federal court, Rule

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56(d) applies” to requests for discovery); see also Metabolife Intern., Inc. v. Wornick, 264 F.3d

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832, 846 (9th Cir. 2001) (treating an anti-SLAPP motion like a summary judgment motion for the

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purposes of determining whether a party opposing an anti-SLAPP motion may seek discovery).

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Under Rule 56(d), a court may allow a party opposing a summary judgment motion to take

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discovery if that party shows that “(1) it has set forth in affidavit form the specific facts it hopes

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to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are

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essential to oppose summary judgment.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan

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Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008). In the early stages of a case, “district courts

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should grant any Rule 56(f) motion fairly freely.” See Burlington N. Santa Fe R. Co. v.

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Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003); see also

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FED. R. CIV. P. 56(d) advisory committee’s note (2010) (“Subdivision (d) carries forward without

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substantial change the provisions of former subdivision (f).”).

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Here, plaintiffs have met these requirements, as they have sufficiently established that

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the testimony at issue will help them uncover facts showing that Audubon suppressed information

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and altered documents that were material to the boundary dispute that gave rise to plaintiffs’

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claims against Audubon for slander of title and deceit. Accordingly, plaintiffs may depose Robert

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Curtis and Brian Curtis on May 7 and May 9, 2012, as scheduled.

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IT IS SO ORDERED.

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Date: April 30, 2012

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_____________________
Nathanael M. Cousins
United States Magistrate Judge

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Case No. 11-cv-05599 NC
ORDER GRANTING REQUEST TO
DEPOSE NONPARTIES

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