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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PAUL SOMERS, Plaintiff, 8 9 Case No. 14-cv-05180-EMC (KAW) ORDER REGARDING MAY 2017 DISCOVERY FILINGS v. DIGITAL REALTY TRUST INC, et al., 11 United States District Court Northern District of California 10 Defendants. Re: Dkt. Nos. 222, 226, 227, 228, 229, 233, 234, 235, 236 12 13 The discovery cut off in this case was April 6, 2017. (Dkt. No. 183.) Pursuant to Civil 14 Local Rule 37-3, "no motion to compel discovery may be filed more than 7 days after the 15 discovery cut-off." Further, on April 14, 2017, following an April 11, 2017 discovery hearing, the 16 Court set a schedule for the parties to address all remaining disputes: Defendants were to file a 17 letter addressing all their remaining discovery disputes by April 21, 2017, Plaintiff was to file a 18 response and identify all his remaining discovery disputes by April 28, 2017, and Defendants were 19 to file a reply by May 5, 2017. (Dkt. No. 212 at 1.) The April 14, 2017 order clearly stated: "All 20 disputes not raised in these letters will be deemed waived; the letters must encompass all 21 remaining disputes that the parties desire the Court to resolve." (Id. at 1-2 (original emphasis).) 22 23 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. 24 I. DISCUSSION 25 A. 26 On May 3, 2017, Plaintiff filed a discovery letter titled: "Paul Somers v. Digital Realty May 3, 2017 Discovery Letter (Dkt. Nos. 222, 226) 27 Trust & Ellen Jacobs - Important Discovery Being Withheld by Defendant." (Dkt. No. 222.) 28 The letter asserted that on April 20, 2017, Plaintiff had learned from "a former high level SVP" 1 that Defendant Digital Realty had filed a lawsuit against Mr. Kumar after Mr. Kumar was forced 2 to resign. (Id. at 1.) On May 10, 2017, Defendants requested that Plaintiff's May 3, 2017 letter be 3 stricken as untimely. (Dkt. No. 226.) 4 The Court GRANTS Defendants' request and STRIKES Plaintiff's May 3, 2017 letter as 5 untimely. Plaintiff states that he learned of the lawsuit on April 20, 2017. Thus, if Plaintiff 6 wanted discovery on this matter, Plaintiff should have raised the dispute in his April 28, 2017 7 response, as required by the Court's April 14, 2017 order. The Court will therefore only consider 8 this matter to the extent it was raised in Plaintiff's April 28, 2017 filing; if the matter was not 9 raised, it is waived. B. 11 United States District Court Northern District of California 10 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) 12 actions or orders be given until after this hearing occurs." (Dkt. No. 227.) The Court DENIES 13 Plaintiff's request for a hearing. If the Court deems a hearing necessary to resolve the discovery 14 matters raised in the parties' filings made pursuant to the April 14, 2017 order, it will set one. 15 C. 16 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) 17 reply. (Dkt. No. 228 ("Attached is my line by line review of the Defendants [sic] May 5, 2017, 18 [sic] letter").) The Court's April 28, 2017 order did not permit the filing of a sur-reply, nor did 19 Plaintiff seek leave to file a sur-reply. The Court therefore STRIKES Plaintiff's May 16, 2017 20 filing. Should the May 16, 2017 letter request any relief, such relief is DENIED as untimely. 21 D. 22 On May 18, 2017, Defendants filed an ex parte administrative motion to remove Plaintiff's May 18, 2017 Filing (Dkt. No. 229) 23 May 16, 2017 filing or, in the alternative, to seal Exhibits C, E, F, O, and T. (Dkt. No. 229.) On 24 May 19, 2017, Plaintiff filed a response, stating that he would remove Exhibit T but opposing the 25 remainder of the request to seal. (Dkt. No. 230.) 26 The Court DENIES the request to seal Exhibit C. Defendants appear to assert attorney- 27 client privilege. (Petersen Decl., Dkt. No. 229-1, Exh. 1.) While the original e-mail introduces 28 Attorney Pedersen, the e-mail chain itself does not appear to include Attorney Pederson as a 2 1 recipient or sender of any of the e-mails. Thus, it is not clear attorney-client privilege applies. 2 This denial is without prejudice to a showing that Attorney Pedersen was on this e-mail chain. 3 With respect to Exhibits E and F, Defendants are directed to identify the specific 4 documents in each exhibit which they assert are privileged. Defendants must also satisfy the 5 requirements of Civil Local Rule 79-5(d) and file a declaration establishing that the documents 6 sought to be filed under seal are sealable; "[r]eference to a stipulation or protective order that 7 allows a party to designate certain documents as confidential is not sufficient to establish that a 8 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 10 Jacobs's deposition. Defendants do not identify any privilege that applies to permit the sealing of 11 United States District Court Northern District of California 9 the entire excerpt. 12 13 The Court DENIES the request to seal Exhibit T as moot, as Plaintiff has already agreed to remove this exhibit. 14 E. 15 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) 16 order, in which the Court denied Plaintiff's "Sixth" and "Seventh" discovery letters. (Dkt. No. 17 233.) Plaintiff argues that the Court and Defendants agreed at the March 21, 2017 meet and 18 confer to allow the letters to be uploaded for review. (Id. at 1, 3-4.) On May 25, 2017, 19 Defendants filed a request that Plaintiff's May 22, 2017 filing be stricken as untimely. 20 The Court DENIES Plaintiff's request for review, and DENIES Defendants' request to 21 strike as moot. First, to the extent Plaintiff is asking that the Court reconsider its May 2, 2017 22 order, Plaintiff has not requested leave to file his request, as required by Civil Local Rule 7-9(a). 23 Second, while the Court and Defendants agreed to allow the letters to be uploaded for review, this 24 does not prevent the Court from determining that the matters raised were waived as untimely, 25 particularly with respect to the "Sixth" discovery letter that concerned disputes over May 22, 2015 26 interrogatories. (Dkt. No. 221 at 3 (explaining matter was waived because Plaintiff failed to raise 27 the special interrogatories in the June 11, 2016 joint letter or submit a letter on March 14, 2017, as 28 required by the Court's orders).) Third, the Court did address the "Seventh" discovery letter on the 3 1 merits. (See id. at 3-4 (concluding that there was no evidence Defendants possessed the voicemail 2 Plaintiff was seeking, and that "Defendant cannot be compelled to produce a voicemail that they 3 no longer have").) The Court will not reconsider its May 2, 2017 order. 4 F. 5 On May 25, 2017, Plaintiff enclosed an improper ex parte communication with the Court May 25, 2017 Filing (Dkt. Nos. 235, 236) 6 with the courtesy copies of other documents, which again requested that the Court not "order 7 anything else without a hearing." (Dkt. No. 235.) The following day, Defendants filed a request 8 to strike Plaintiff's request. (Dkt. No. 236). The Court DENIES the May 25, 2017 request for a 9 hearing, and DENIES Defendants' May 26, 2017 request to strike as moot. 10 II. CONCLUSION United States District Court Northern District of California 11 For the reasons stated above, the Court GRANTS Defendants' May 10, 2017 request to 12 STRIKE Plaintiff's May 3, 2017 letter, DENIES Plaintiff's May 11, 2017 request for a hearing, 13 STRIKES Plaintiff's May 16, 2017 filing, DENIES IN PART Defendants' May 18, 2017 ex parte 14 application, DENIES Plaintiff's May 22, 2017 request for review, DENIES AS MOOT 15 Defendants' May 25, 2017 request to strike, DENIES Plaintiff's May 25, 2017 request for a 16 hearing, and DENIES AS MOOT Defendants' May 26, 2017 request to strike. 17 Again, discovery has closed in this case. The only pending discovery matter before this 18 Court are those permitted by the Court's April 14, 2017 order. Despite this, the parties have 19 collectively filed the above-addressed nine various requests for relief in the last month. The 20 parties are not to file any further discovery-related letters or requests. The parties are forewarned 21 that any further unpermitted filings may result in the Court imposing sanctions sua sponte for 22 wasting judicial resources. 23 24 IT IS SO ORDERED. Dated: May 31, 2017 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 25 26 27 28 4

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