Robinson v. The Chefs' Warehouse

Filing 150

ORDER TO SHOW CAUSE to both parties regarding Discovery 147 , 148 , 149 . Joint Show Cause Response due by 12/1/2017. Signed by Judge Kandis A. Westmore on 11/28/2017. (kawlc1, COURT STAFF) (Filed on 11/28/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SHAON ROBINSON, Plaintiff, 8 9 10 United States District Court Northern District of California 11 v. Case No. 3:15-cv-05421-RS (KAW) ORDER TO SHOW CAUSE REGARDING DISCOVERY Re: Dkt. Nos. 147-149 THE CHEFS' WAREHOUSE, Defendant. 12 13 On November 27, 2017, Defendants file a motion for protective order and an ex parte 14 application to shorten time to hear the motion for protective order. (Dkt. No. 147 & 148). On 15 November 28, 2017, Plaintiffs filed an opposition to the ex parte application. (Dkt. No. 149.) In 16 sum, on November 17, 2017, Plaintiffs issued a subpoena to take the deposition of a nonparty, 17 which was noticed for November 29, 2017. Plaintiffs did not meet and confer with Defendants 18 prior to sending the formal notice. Defendants are unavailable on November 29, 2017 and asked 19 Plaintiffs to withdraw the subpoena so that the parties may meet and confer in good faith. 20 Plaintiffs are willing to reschedule, but are not willing to withdraw the subpoena. 21 Civil Local Rule 30-1 requires that, “before noticing a deposition of a party or witness 22 affiliated with a party, the noticing party must confer about the scheduling of the deposition with 23 opposing counsel. . . .” Civil L.R. 30-1. Moreover, the Northern District Guidelines for 24 Professional Conduct provide that “[a] lawyer should make reasonable efforts to schedule 25 meetings, hearings, and discovery by agreement whenever possible and should consider the 26 scheduling interests of opposing counsel, the parties, witnesses, and the court. Misunderstandings 27 should be avoided by sending formal notice after agreement is reached.” (Northern District 28 Guidelines § 3(a).) Here, the nonparty deponent is an employee of the Ritz Carlton Hotel, which 1 is one of Defendants’ customers, and is, therefore, likely affiliated with Defendants. Even if the 2 deponent is not considered affiliated, the Guidelines require meeting and conferring prior to 3 sending the formal notice. Thus, Plaintiffs failed to comply with both the Civil Local Rules and 4 the Northern District Guidelines regarding scheduling and noticing the deposition, despite the 5 undersigned’s repeated prior instruction that the parties follow the Guidelines. (See Dkt. No. 118 6 at 2-3; Dkt. No. 137 at 6.) Now, Plaintiffs appear to be holding the notice over Defendants’ heads 7 for the purposes of gamesmanship, which the parties have also been advised violates the 8 Guidelines. (See Dkt. No. 73 at 3.) That said, Defendants are not without fault, as they filed the motion for protective order 10 and the ex parte application without meaningfully meeting and conferring. (Dkt. No. 149 at 5.) 11 United States District Court Northern District of California 9 When Plaintiffs advised Defendants that they agreed to reschedule the deposition via email— 12 albeit while refusing to withdraw the subpoena— and that the Court would require them to meet 13 and confer regarding scheduling should a motion for protective order be filed, Defendants went 14 ahead and filed the motion and ex parte application anyway without so much as a phone call. (See 15 Dkt. No. 149 at 5; Decl. of Cody Stroman, Dkt. No. 149-1, Ex. A at 1.) Indeed, the undersigned’s 16 Standing Order requires that “[p]rior to filing any discovery-related motion, lead trial counsel for 17 all parties shall meet and confer in person or telephonically, if an in-person conference is not 18 feasible, regarding the discovery dispute(s) in an effort to resolve these matter(s).” (Judge 19 Westmore’s General Standing Order ¶ 12 (emphasis in original).) Moreover, the Guidelines 20 require that a lawyer notify opposing counsel when a scheduled deposition must be rescheduled 21 and provide alternate dates when possible. (Northern District Guidelines § 3(e).) Here, Plaintiffs 22 asked for Defendants’ availability between now and December 13, 2017, but Defendants have yet 23 to provide alternate dates, rendering applicable, the old adage that “two wrongs do not make a 24 right.” 25 Notwithstanding, the Court sees no reason why this dispute cannot be resolved without 26 court intervention, nor does the Court understand why the deposition is time sensitive given that 27 the class certification motion is being heard on December 14, 2017. Accordingly, the Court issues 28 an ORDER TO SHOW CAUSE why sanctions should not be issued against both parties in the 2 1 amount of $500 for abuse of the discovery process and waste of judicial resources. The parties are 2 ordered to meet and confer regarding the noticed deposition and the motion for protective order 3 either telephonically or in person (not via email; and if in person, at a location selected by 4 Plaintiffs, pursuant to the undersigned’s General Standing Order ¶ 12), and shall file a joint 5 response to the order to show cause by Friday, December 1, 2017. Should the parties resolve the 6 dispute informally before the deadline, thereby rendering Defendants’ motions moot, they shall 7 file a notice informing the undersigned of same, and the order to show cause will be discharged. 8 9 IT IS SO ORDERED. Dated: November 28, 2017 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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