Kelly v. Worth Holdings, LLC et al

Filing 53

ORDER by Judge Edward M. Chen granting 52 Discovery Letter Brief. (emclc1, COURT STAFF) (Filed on 7/23/2018)

not go forward as scheduled. Importantly, they did not object or even mention that the depositions were set
after the discovery cut-off.
On 7/2, Defendants served objections to the deposition notices by mail. Again, there was no objection to
the depositions being set after the discovery cut-off. Only after the cut-off, on 7/17, did Defendants’ counsel
send an email refusing to produce the Deponents. Plaintiff’s counsel requested that the parties stipulate to take
the depositions after the discovery cut-off, but Defendants refused.
A Court may, for good cause, extend the time for an act to be accomplished. FRCP 6(b)(1)(B).
Generally to determine whether the delay was excusable, the Court considers (1) the danger of prejudice to
opposing party; (2) the length of delay and the potential impact on the proceedings; (3) the reason for the delay;
and (4) whether the moving party acted in good faith. Pincay v. Andrews, 389 F.3d 853, 855-856 (9th Cir. 2004)
Good cause exists for allowing Plaintiff to take these depositions. There is no prejudice to Defendants.
The length of delay was only 4 days. Taking these depositions of three key people will not have any impact on
the proceedings because trial is still 6 months away. The reason for the delay was a simple mistake. Although
noticed in May, Plaintiff set dates in July because Mr. Miller was going to be out on a pre-paid vacation for the
latter half of June and had surgery scheduled for early July. Plaintiff acted in good faith when the dates were
inadvertently set and tried to connect with Defendants regarding the depositions multiple times. Mr. Miller also
offered to have Defendants provide the timing and locations for the depositions and that we would
accommodate them. Finally, not allowing Plaintiff to take the depositions would be extremely prejudicial to
Plaintiff given that these Defendants are the very people other than Plaintiff who possess information necessary
for Plaintiff’s claims against Defendants, specifically information related to Defendants’ recruitment of
Plaintiff, employment contract negotiations and his performance, compensation, benefits and termination.
2.

Defendants’ Position

Plaintiff Counsel’s lack of diligence in pursuing these depositions does not present sufficient good cause
to merit an extension to the non-expert written discovery cut-off. Plaintiff’s Counsel conceded that he has
known the identity of these witnesses since the conception of this lawsuit on May 1, 2017. Mr. Miller has had
14 months to notice, and take these depositions, yet waited until after the discovery cut-off to attempt to do so.
Plaintiff’s counsel understates the prejudice Defendants would incur given that Defendants have already
submitted their expert report, and plan on submitting a motion for summary judgment that is due in less than 60
days. Moreover, Mr. Miller is seeking to take depositions of out-of-state witnesses, located in Georgia and
Michigan, which would result in undue hardship through forcing them to travel to San Francisco, California on
short notice.
The Federal Rules of Civil Procedure provide that a pretrial scheduling order can be modified only upon
a showing of “good cause.” Fed. R. Civ. Proc. 16(b). To establish good cause, a party must show that despite
its due diligence, it was not able to meet the deadline set in the scheduling order. See Johnson v. Mammoth
Recreations, 975 F.2d 604, 609 (9th Cir. 1992). Thus, if a party is unable to establish that it has been diligent,
the court’s inquiry ends and the party’s motion should be denied. See Zivkovic v. S. Cal. Edison Co., 302 F.3d
1080, 1087 (9th Cir. 2002) (denying motion to extend discovery because party failed to show good cause).
Here, Plaintiff’s Counsel concedes they were not diligent, and did not know the non-expert discovery
cut-off date. Plaintiff’s Counsel knew the identity of Kyle O’Malley, Eric Boorom, and Marci Bates since May
2017. Additionally, it is undisputed that Plaintiff’s counsel served their initial disclosures identifying Kyle
O’Malley, Marci Bates, and Eric Boorom, and therefore knew their identities more than 14 months before the
non-expert discovery cut-off. However, as a result of Plaintiff Counsel’s lack of diligence in noticing these
depositions, and meeting and conferring with Defendants, they allowed the non-expert discovery cut-off to

lapse. See, e.g., Jackson v. Laureate, 186 F.R.D. 605, 608 (E.D. Cal. 1999) (denying motion to modify
scheduling order because party failed to show that the information prompting the motion was unknown to her
before the scheduling order issued).
To rebut this, Plaintiff’s Counsel argues Defendants were “evasive” in written discovery to justify the
extension of the non-expert discovery cut-off. However, Defendants provided Plaintiff with their written
discovery responses, and document production on 03/29/18. Two months later, on 05/24/18, Plaintiff’s Counsel
sent their first and only meet and confer letter regarding Defendant’s written discovery responses. In response,
Defendants requested two one-week extensions in order to provide Plaintiff with its amended responses. On
06/15/18, Defendants provided their amended written discovery responses to Plaintiff’s counsel. Defendants’
amended responses were minimal. None of the Amended Interrogatory Responses only consisted of just
requested pin cites to the 331 pages of document production already produced on 03/29/18. Accordingly,
Plaintiff’s Counsel has all necessary documents in his possession since March 29, yet decided to wait 4 months
to attempt to take any depositions.
Plaintiff Counsel’s representation that they sent multiple emails attempting to meet and confer regarding
the deposition dates is a patent falsehood. On June 20 and June 27, Plaintiff Counsel’s legal assistant emailed
Defendants asking only if the depositions scheduled for July 16, 17, and 19 were confirmed. Immediately after
receiving Plaintiff’s email, Defendants responded stating “We are in the process of finalizing our objections to
the deposition notices for the unilaterally set dates, which we will service on your office by early next week. As
such, the depositions will not be taking place on July 16, 17, and 19.” Plaintiff’s Counsel never responded to
this email. On July 17, five days after the non-expert discovery cut-off, Plaintiff’s Counsel reached out for the
first time to meet and confer for deposition dates, and did not provide good cause for extending the deadline.
The prejudice that Defendants would suffer if Plaintiff’s request were granted supplies a separate and
independent basis to deny Plaintiff’s request to reopen discovery to take these three depositions. To grant
Plaintiff’s extension would cause prejudice, since it would put all case deadlines in jeopardy, including the MSJ
and trial date. To disturb these dates, after discovery has already closed, would be patently unfair considering
Defendants have worked with diligence and expanded substantial resources to fulfill their discovery obligations
and complete discovery.
Again, expert reports were due on 07/12/18, and Defendants have already provided their opening expert
report. Any new testimony would impact the report, necessitating Defendants’ expert to redo his report, which
in turn would impact Defendants’ ability to file a timely motion for summary judgment that is due by 09/20/18.
Defendants should not have to wait to complete discovery and proceed with its defense. Plaintiff’s counsel has
stated they do not believe extending the discovery deadline will affect any other deadlines or prejudice
Defendants. Plaintiff cannot have it both ways. Either the testimony sought is, as Plaintiff argues, highly
relevant, and thus will need to be taken into consideration for expert discovery and summary judgment, or the
testimony is of marginal relevance, and therefore not sufficiently important to warrant reopening discovery.
Very truly yours,
/s/ Michael G. Miller
Michael G. Miller
Perry Johnson Anderson
Miller & Moskowitz LLP
Attorney for Plaintiff

/s/ Katherine S. Catlos
Katherine S. Catlos
Kaufman Dolowich & Voluck, LLP
Attorneys for Defendants