Somers v. Digital Realty Trust Inc et al

Filing 238

ORDER Regarding May 2017 Discovery Filings by Judge Kandis A. Westmore striking 222 May 3, 2017 Discovery Letter Brief; granting 226 Request to Strike; denying 227 Request for a Hearing; striking 228 Plaintiff's May 16, 2017 Filing; denying in part 229 Ex Parte Application; denying 233 Request for Review; denying as moot 234 Request to Strike; denying 235 Request for a Hearing; denying as moot 236 Request to Strike. (kawlc2, COURT STAFF) (Filed on 5/31/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PAUL SOMERS,
Plaintiff,

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Case No. 14-cv-05180-EMC (KAW)
ORDER REGARDING MAY 2017
DISCOVERY FILINGS

v.
DIGITAL REALTY TRUST INC, et al.,

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United States District Court
Northern District of California

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Defendants.

Re: Dkt. Nos. 222, 226, 227, 228, 229, 233,
234, 235, 236

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The discovery cut off in this case was April 6, 2017. (Dkt. No. 183.) Pursuant to Civil

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Local Rule 37-3, "no motion to compel discovery may be filed more than 7 days after the

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discovery cut-off." Further, on April 14, 2017, following an April 11, 2017 discovery hearing, the

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Court set a schedule for the parties to address all remaining disputes: Defendants were to file a

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letter addressing all their remaining discovery disputes by April 21, 2017, Plaintiff was to file a

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response and identify all his remaining discovery disputes by April 28, 2017, and Defendants were

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to file a reply by May 5, 2017. (Dkt. No. 212 at 1.) The April 14, 2017 order clearly stated: "All

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disputes not raised in these letters will be deemed waived; the letters must encompass all

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remaining disputes that the parties desire the Court to resolve." (Id. at 1-2 (original emphasis).)

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Despite Civil Local Rule 37-3 and the Court's April 14, 2017 order, the parties have filed
numerous unpermitted discovery filings in the last month, which the Court addresses below.

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I.

DISCUSSION

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A.

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On May 3, 2017, Plaintiff filed a discovery letter titled: "Paul Somers v. Digital Realty

May 3, 2017 Discovery Letter (Dkt. Nos. 222, 226)

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Trust & Ellen Jacobs - Important Discovery Being Withheld by Defendant." (Dkt. No. 222.)

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The letter asserted that on April 20, 2017, Plaintiff had learned from "a former high level SVP"

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that Defendant Digital Realty had filed a lawsuit against Mr. Kumar after Mr. Kumar was forced

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to resign. (Id. at 1.) On May 10, 2017, Defendants requested that Plaintiff's May 3, 2017 letter be

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stricken as untimely. (Dkt. No. 226.)

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The Court GRANTS Defendants' request and STRIKES Plaintiff's May 3, 2017 letter as

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untimely. Plaintiff states that he learned of the lawsuit on April 20, 2017. Thus, if Plaintiff

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wanted discovery on this matter, Plaintiff should have raised the dispute in his April 28, 2017

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response, as required by the Court's April 14, 2017 order. The Court will therefore only consider

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this matter to the extent it was raised in Plaintiff's April 28, 2017 filing; if the matter was not

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raised, it is waived.
B.

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United States District Court
Northern District of California

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On May 11, 2017, Plaintiff filed a request for hearing, and "request[ed] that no further

May 11, 2017 Request for Hearing (Dkt. No. 227)

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actions or orders be given until after this hearing occurs." (Dkt. No. 227.) The Court DENIES

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Plaintiff's request for a hearing. If the Court deems a hearing necessary to resolve the discovery

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matters raised in the parties' filings made pursuant to the April 14, 2017 order, it will set one.

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C.

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On May 16, 2017, Plaintiff filed what appears to be a sur-reply to Defendants' May 5, 2017

May 16, 2017 Filing (Dkt. No. 228)

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reply. (Dkt. No. 228 ("Attached is my line by line review of the Defendants [sic] May 5, 2017,

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[sic] letter").) The Court's April 28, 2017 order did not permit the filing of a sur-reply, nor did

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Plaintiff seek leave to file a sur-reply. The Court therefore STRIKES Plaintiff's May 16, 2017

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filing. Should the May 16, 2017 letter request any relief, such relief is DENIED as untimely.

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D.

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On May 18, 2017, Defendants filed an ex parte administrative motion to remove Plaintiff's

May 18, 2017 Filing (Dkt. No. 229)

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May 16, 2017 filing or, in the alternative, to seal Exhibits C, E, F, O, and T. (Dkt. No. 229.) On

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May 19, 2017, Plaintiff filed a response, stating that he would remove Exhibit T but opposing the

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remainder of the request to seal. (Dkt. No. 230.)

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The Court DENIES the request to seal Exhibit C. Defendants appear to assert attorney-

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client privilege. (Petersen Decl., Dkt. No. 229-1, Exh. 1.) While the original e-mail introduces

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Attorney Pedersen, the e-mail chain itself does not appear to include Attorney Pederson as a
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recipient or sender of any of the e-mails. Thus, it is not clear attorney-client privilege applies.

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This denial is without prejudice to a showing that Attorney Pedersen was on this e-mail chain.

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With respect to Exhibits E and F, Defendants are directed to identify the specific

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documents in each exhibit which they assert are privileged. Defendants must also satisfy the

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requirements of Civil Local Rule 79-5(d) and file a declaration establishing that the documents

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sought to be filed under seal are sealable; "[r]eference to a stipulation or protective order that

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allows a party to designate certain documents as confidential is not sufficient to establish that a

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document, or portions thereof, are sealable." Defendants' filing is due by June 9, 2017.
The Court DENIES the request to seal Exhibit O, which is an excerpt of Defendant

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Jacobs's deposition. Defendants do not identify any privilege that applies to permit the sealing of

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United States District Court
Northern District of California

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the entire excerpt.

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The Court DENIES the request to seal Exhibit T as moot, as Plaintiff has already agreed to
remove this exhibit.

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E.

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On May 22, 2017, Plaintiff filed a letter requesting review of the Court's May 2, 2017

May 22, 2017 Filing (Dkt. Nos. 233, 234)

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order, in which the Court denied Plaintiff's "Sixth" and "Seventh" discovery letters. (Dkt. No.

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233.) Plaintiff argues that the Court and Defendants agreed at the March 21, 2017 meet and

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confer to allow the letters to be uploaded for review. (Id. at 1, 3-4.) On May 25, 2017,

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Defendants filed a request that Plaintiff's May 22, 2017 filing be stricken as untimely.

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The Court DENIES Plaintiff's request for review, and DENIES Defendants' request to

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strike as moot. First, to the extent Plaintiff is asking that the Court reconsider its May 2, 2017

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order, Plaintiff has not requested leave to file his request, as required by Civil Local Rule 7-9(a).

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Second, while the Court and Defendants agreed to allow the letters to be uploaded for review, this

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does not prevent the Court from determining that the matters raised were waived as untimely,

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particularly with respect to the "Sixth" discovery letter that concerned disputes over May 22, 2015

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interrogatories. (Dkt. No. 221 at 3 (explaining matter was waived because Plaintiff failed to raise

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the special interrogatories in the June 11, 2016 joint letter or submit a letter on March 14, 2017, as

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required by the Court's orders).) Third, the Court did address the "Seventh" discovery letter on the
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merits. (See id. at 3-4 (concluding that there was no evidence Defendants possessed the voicemail

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Plaintiff was seeking, and that "Defendant cannot be compelled to produce a voicemail that they

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no longer have").) The Court will not reconsider its May 2, 2017 order.

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F.

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On May 25, 2017, Plaintiff enclosed an improper ex parte communication with the Court

May 25, 2017 Filing (Dkt. Nos. 235, 236)

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with the courtesy copies of other documents, which again requested that the Court not "order

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anything else without a hearing." (Dkt. No. 235.) The following day, Defendants filed a request

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to strike Plaintiff's request. (Dkt. No. 236). The Court DENIES the May 25, 2017 request for a

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hearing, and DENIES Defendants' May 26, 2017 request to strike as moot.

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II.

CONCLUSION

United States District Court
Northern District of California

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For the reasons stated above, the Court GRANTS Defendants' May 10, 2017 request to

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STRIKE Plaintiff's May 3, 2017 letter, DENIES Plaintiff's May 11, 2017 request for a hearing,

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STRIKES Plaintiff's May 16, 2017 filing, DENIES IN PART Defendants' May 18, 2017 ex parte

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application, DENIES Plaintiff's May 22, 2017 request for review, DENIES AS MOOT

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Defendants' May 25, 2017 request to strike, DENIES Plaintiff's May 25, 2017 request for a

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hearing, and DENIES AS MOOT Defendants' May 26, 2017 request to strike.

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Again, discovery has closed in this case. The only pending discovery matter before this

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Court are those permitted by the Court's April 14, 2017 order. Despite this, the parties have

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collectively filed the above-addressed nine various requests for relief in the last month. The

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parties are not to file any further discovery-related letters or requests. The parties are forewarned

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that any further unpermitted filings may result in the Court imposing sanctions sua sponte for

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wasting judicial resources.

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IT IS SO ORDERED.
Dated: May 31, 2017
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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