Hernandez v. Path, Inc.

Filing 95

ORDER ON JOINT LETTER BRIEF REGARDING PLAINTIFFS' REQUEST TO OPEN DISCOVERY re (490 in 3:13-cv-00453-JST) Letter Brief, filed by Scott Medlock, Steve Dean, Nirali Mandaywala, Guili Biondi, Oscar Hernandez, Steven Gutierrez, Judy Long , Rachelle King, Alan Beueshasen, Haig Arabian, Francisco Espitia, Marc Opperman, Jason Green, Gentry Hoffman, Claire Moses, Alicia Medlock, Greg Varner. Signed by Judge Jon S. Tigar on August 28, 2014. (wsn, COURT STAFF) (Filed on 8/28/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARC OPPERMAN, et al.,

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Case No. 13-cv-00453-JST

Plaintiffs,
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v.
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PATH, INC., et al.,

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Defendants.

ORDER ON JOINT LETTER BRIEF
REGARDING PLAINTIFFS’ REQUEST
TO OPEN DISCOVERY
Re: ECF No. 490

United States District Court
Northern District of California

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THIS ORDER RELATES TO ALL
CASES

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On August 6, 2014, the parties filed a joint letter brief in which Plaintiffs ask the Court to

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open discovery as to their invasion of privacy claim. ECF No. 490 at 1-2. Plaintiffs argue that
there is no reason to prevent them from taking discovery as to an issue that is now clearly part of

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the litigation. Defendants argue that discovery should remain closed because: (1) Plaintiffs have

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not made an adequate showing to obtain “expedited discovery,” and (2) the requested discovery

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relates to claims that pending motions to dismiss might dispose of. Id. at 3-6.1

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As a preliminary matter, it is not clear that the correct term for the discovery Plaintiffs seek
is “expedited discovery”; the cases use that phrase to refer to discovery that occurs before the

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parties’ Rule 26(f) conference. See, e.g., Apple Inc. v. Samsung Elecs. Co., 768 F. Supp. 2d 1040,

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1044 (N.D. Cal. 2011); Azco Biotech Inc. v. Qiagen, N.V., No. 12-cv-2599 BEN (DHB), 2013

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WL 3283841, at *3 (S.D. Cal. June 26, 2013). The dispute here is more properly characterized as

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At the time the parties filed their discovery letter brief, the Court’s prior orders contemplated that
Defendants would file motions to dismiss the Second Amended Consolidated Complaint, and
numerous such motions have now been filed. See ECF Nos. 493, 495-504.

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one in which Defendants seek a protective order, pursuant to Rule 26, to prevent discovery that

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would otherwise be permitted. See Fed. R. Civ. P. 26(c)(1) (“The court may, for good cause, issue

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an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden

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or expense.”).

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District courts in the Ninth Circuit have recognized that a protective order is sometimes
appropriate to avoid or delay discovery when a motion to dismiss is pending. See S.F. Tech. v.

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Kraco Enters., No. 11-cv-00355 EJD, 2011 WL 2193397, at *2 (N.D. Cal. June 6, 2011) (citing
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United States District Court
Northern District of California

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cases). The courts apply two-part test when evaluating a request for a stay of discovery during the
pendency of a dispositive motion:
First, the pending motion must be potentially dispositive of the entire case, or must
at least be dispositive on the issue to which the discovery is aimed. Second, the
court must determine whether the potentially dispositive motion can be decided
without the discovery. A protective order may issue if the moving party satisfies
both prongs.
Id. at *2 (citations omitted).

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Here, the first prong of the test is satisfied; the motions to dismiss could potentially dispose
of all of Plaintiffs’ claims, including the invasion of privacy claim, thus satisfying the first Kraco

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factor. The second prong is also satisfied, because the discovery Plaintiffs are seeking is not

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necessary to resolve any of the motions to dismiss.

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Defendants also persuasively argue that permitting discovery would present a significant
risk of duplication. Plaintiffs have elected not to proceed solely on their invasion of privacy
claim, but on other claims as well. If the Court permits discovery now solely on Plaintiffs’

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privacy claim, but other claims subsequently survive the impending motions to dismiss, Plaintiffs

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may later need—or at least want—to re-depose the same witnesses, gather documents or ESI from

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the same sources, or otherwise engage in potentially duplicative discovery. Plaintiffs do not even

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attempt to explain why Defendants should have to bear the expense of this duplication.

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The only way to avoid the risk of duplication is to permit Plaintiffs to take discovery on all

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their claims now—relief that Plaintiffs have neither asked for nor attempted to justify. Even if

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they had, Defendants point out that much of that discovery might subsequently turn out to have

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been unnecessary, once the next round of motions to dismiss have been decided. Defendants’

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concern is not hypothetical, given (1) how many of Plaintiffs’ claims were dismissed in the last

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round of motions, and (2) the fact that Path, Inc., one of the named plaintiffs in this matter, earlier

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participated in several months of discovery in the related case, Hernandez v. Path, Inc., No. 12-cv8
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01515, on claims that are not currently alleged in the amended complaint.
In short, Defendants have made a persuasive case for the issuance of a protective order.

United States District Court
Northern District of California

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This is a large, complex case with many moving parts. The Court anticipates that discovery, once

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it commences in earnest, will be a substantial undertaking for all parties. To undertake a path now

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that renders that discovery piecemeal, or potentially duplicative or unnecessary, would neither
serve any legitimate interest nor reflect good case management. While this Court has no blanket

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rule against discovery while a motion to dismiss is pending, Defendants here have persuaded the
Court that the benefits of discovery at this stage are very much outweighed by the disadvantages.
CONCLUSION

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The Court DENIES Plaintiffs’ request to open discovery as to its invasion of privacy claim

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and GRANTS Defendants a protective order, which will expire upon the Court’s resolution of any

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motions to dismiss that Defendants file, or upon further order of the Court.

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IT IS SO ORDERED.
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Dated: August 28, 2014
______________________________________
JON S. TIGAR
United States District Judge

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