LegalForce RAPC Worldwide P.C. v. MH Sub I, LLC

Filing 74

Order on Discovery Letter Dkt. No. 69 . Signed by Special Master McElhinny. (whalc2, COURT STAFF) (Filed on 9/25/2024).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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LEGALFORCE RAPC WORLDWIDE
P.C.,
Plaintiff,

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v.

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No. C 24-00669 WHA

MH SUB I, LLC,

ORDER ON DISCOVERY LETTER
DKT. NO. 69

Defendant.

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Plaintiff has filed a Letter Brief asking me to permit the recording of meet and confer

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sessions. Defendant objects to the recording. Plaintiff also seeks the entry of two protective

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orders, one governing the production of Electronically Stored Information, and another more

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general in coverage. Defendant opposes the orders submitted by Plaintiff, but offers two

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different orders which it argues would better serve this case. From the record before me it

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appears that the parties have not discussed any part of this motion face to face as required by

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my earlier Order; consequently, I do not believe a hearing would be necessary or useful.

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Plaintiff’s requests and Defendant’s counter-requests are DENIED.

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1.

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Plaintiff asks me to order the Defendant to participate in formally recorded meet and

REQUEST TO RECORD

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confer sessions even though the Defendant refuses. Plaintiff cites no legal basis or precedent

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for such an order. Even if I had the power to do so I would not. Plaintiff misapprehends the

United States District Court
Northern District of California

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purposes of meeting and conferring. There is almost always a benefit from working with an

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opponent (no matter how difficult or distasteful) to design, through compromise, a discovery

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process tailored to a particular case, rather than submitting endless disputes hoping for a

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successful winner take all outcome. And there is always a duty to one’s client to try to achieve

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this efficiency. This design is achieved by full and frank exchanges between the parties to find

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a process that protects each party’s core interests, but which permits each party the full

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opportunity to obtain the discovery needed to support its case. Compromise is central.

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Unfortunately, we are not yet at that point in this case. At the moment, both parties are using

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their communications to antagonize each other and to generate mini litigations within the

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larger dispute. I don’t see that creating a formal record of these aggressions will help us move

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forward.

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Both parties note that I have and will continue to offer them the opportunity to record our

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hearings. That is different. Even when they are on video, our hearings are public proceedings.

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Recording the arguments creates a record that may be useful to document rulings made at the

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hearing, to seek consistency in this case or, in an appropriate case, to seek review. This factor

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has no application to meet and confer discussions among counsel.

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For the reasons stated, the request to record meet and confer sessions without mutual
consent is DENIED.

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2.

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Based on its experience, and as a courtesy, the Northern District makes model discovery

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orders available to counsel to consider while negotiating a stipulation. Here, both parties have

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submitted differing orders purporting to be variations of Model Orders. To be clear, neither

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party has submitted a stipulated order. Nor has any party taken the time to point out to me how

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its order differs from that submitted by the other. In large part, this is because the parties have

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sent their proposals to each other, but have not discussed them face to face as I require.

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Moreover, I have these orders in a vacuum. I have no idea how either party stores its data or

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prefers to produce it. I am not going to close my eyes and pick an order. The request to enter

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Protective Orders at this time is DENIED WITHOUT PREJUDICE.

PROTECTIVE ORDERS

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To be clear, I am not extending the time to respond to pending discovery. Nor do I

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intend to grand motions to extend based solely on the inability of the parties to agree on orders.

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The parties have three options: 1) they can proceed without any protective orders, relying

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on the Federal Rules alone; 2) they can do what every other party in Northern District litigation

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does and submit stipulated orders, or; 3) after meeting and conferring, they can jointly submit a

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form of order that clearly sets out which parts of the order are agreed and sets out competing

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language on the points that are disputed, so that I can resolve the disputes.

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United States District Court
Northern District of California

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Nothing in this order precludes either party from raising issues by Letter Brief that would
normally be covered by a protective order.

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3.

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In my initial communications with the parties, at my request, Mr. Abhyanker and Ms.

MEET AND CONFER

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Giberti identified themselves as the attorneys responsible to meet and confer on behalf of their

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clients. So far as I can tell, they have never had a person to person conversation, instead

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delegating the responsibility to others who cannot even agree to talk on the phone. It is hereby

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ORDERED, that until further order, the requirement to meet and confer shall be complied with

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strictly and that only Mr. Abhyanker and Ms. Giberti shall participate in the conversations.

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IT IS SO ORDERED.

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Dated: September 25, 2024.

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/s/ Harold J. McElhinny
HAROLD J. McELHINNY
SPECIAL MASTER

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