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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SHAON ROBINSON,
Plaintiff,

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United States District Court
Northern District of California

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v.

Case No. 3:15-cv-05421-RS (KAW)
ORDER TO SHOW CAUSE
REGARDING DISCOVERY
Re: Dkt. Nos. 147-149

THE CHEFS' WAREHOUSE,
Defendant.

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On November 27, 2017, Defendants file a motion for protective order and an ex parte

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application to shorten time to hear the motion for protective order. (Dkt. No. 147 & 148). On

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November 28, 2017, Plaintiffs filed an opposition to the ex parte application. (Dkt. No. 149.) In

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sum, on November 17, 2017, Plaintiffs issued a subpoena to take the deposition of a nonparty,

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which was noticed for November 29, 2017. Plaintiffs did not meet and confer with Defendants

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prior to sending the formal notice. Defendants are unavailable on November 29, 2017 and asked

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Plaintiffs to withdraw the subpoena so that the parties may meet and confer in good faith.

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Plaintiffs are willing to reschedule, but are not willing to withdraw the subpoena.

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Civil Local Rule 30-1 requires that, “before noticing a deposition of a party or witness

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affiliated with a party, the noticing party must confer about the scheduling of the deposition with

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opposing counsel. . . .” Civil L.R. 30-1. Moreover, the Northern District Guidelines for

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Professional Conduct provide that “[a] lawyer should make reasonable efforts to schedule

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meetings, hearings, and discovery by agreement whenever possible and should consider the

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scheduling interests of opposing counsel, the parties, witnesses, and the court. Misunderstandings

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should be avoided by sending formal notice after agreement is reached.” (Northern District

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Guidelines § 3(a).) Here, the nonparty deponent is an employee of the Ritz Carlton Hotel, which

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is one of Defendants’ customers, and is, therefore, likely affiliated with Defendants. Even if the

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deponent is not considered affiliated, the Guidelines require meeting and conferring prior to

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sending the formal notice. Thus, Plaintiffs failed to comply with both the Civil Local Rules and

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the Northern District Guidelines regarding scheduling and noticing the deposition, despite the

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undersigned’s repeated prior instruction that the parties follow the Guidelines. (See Dkt. No. 118

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at 2-3; Dkt. No. 137 at 6.) Now, Plaintiffs appear to be holding the notice over Defendants’ heads

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for the purposes of gamesmanship, which the parties have also been advised violates the

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Guidelines. (See Dkt. No. 73 at 3.)
That said, Defendants are not without fault, as they filed the motion for protective order

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and the ex parte application without meaningfully meeting and conferring. (Dkt. No. 149 at 5.)

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United States District Court
Northern District of California

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When Plaintiffs advised Defendants that they agreed to reschedule the deposition via email—

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albeit while refusing to withdraw the subpoena— and that the Court would require them to meet

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and confer regarding scheduling should a motion for protective order be filed, Defendants went

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ahead and filed the motion and ex parte application anyway without so much as a phone call. (See

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Dkt. No. 149 at 5; Decl. of Cody Stroman, Dkt. No. 149-1, Ex. A at 1.) Indeed, the undersigned’s

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Standing Order requires that “[p]rior to filing any discovery-related motion, lead trial counsel for

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all parties shall meet and confer in person or telephonically, if an in-person conference is not

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feasible, regarding the discovery dispute(s) in an effort to resolve these matter(s).” (Judge

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Westmore’s General Standing Order ¶ 12 (emphasis in original).) Moreover, the Guidelines

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require that a lawyer notify opposing counsel when a scheduled deposition must be rescheduled

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and provide alternate dates when possible. (Northern District Guidelines § 3(e).) Here, Plaintiffs

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asked for Defendants’ availability between now and December 13, 2017, but Defendants have yet

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to provide alternate dates, rendering applicable, the old adage that “two wrongs do not make a

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right.”

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Notwithstanding, the Court sees no reason why this dispute cannot be resolved without

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court intervention, nor does the Court understand why the deposition is time sensitive given that

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the class certification motion is being heard on December 14, 2017. Accordingly, the Court issues

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an ORDER TO SHOW CAUSE why sanctions should not be issued against both parties in the
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amount of $500 for abuse of the discovery process and waste of judicial resources. The parties are

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ordered to meet and confer regarding the noticed deposition and the motion for protective order

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either telephonically or in person (not via email; and if in person, at a location selected by

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Plaintiffs, pursuant to the undersigned’s General Standing Order ¶ 12), and shall file a joint

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response to the order to show cause by Friday, December 1, 2017. Should the parties resolve the

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dispute informally before the deadline, thereby rendering Defendants’ motions moot, they shall

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file a notice informing the undersigned of same, and the order to show cause will be discharged.

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IT IS SO ORDERED.
Dated: November 28, 2017
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KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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