Murray v. Sears, Roebuck and Co. et al

Filing 125

DISCOVERY ORDER DENYING PLAINTIFFS' REQUEST AND GRANTING DEFENDANTS' REQUEST re 121 Notice (Other), Notice (Other) filed by Martin Murray, 122 Response ( Non Motion ) filed by Electrolux Home Products, Inc., Sears, Roebuck and Co.. Signed by Judge Maria-Elena James on 9/13/2010. (mejlc1, COURT STAFF) (Filed on 9/13/2010)

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SQUIRE, SANDERS & DEMPSEY LLP Mark C. Dosker (CA Bar # 114789) Julie E. Schwartz (CA Bar # 260624) 275 Battery Street, Suite 2600 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant SEARS, ROEBUCK AND CO. (additional attorneys listed on signature page)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA MARTIN MURRAY, individually, on behalf of the General Public and on behalf of all others similarly situated, Plaintiff(s), v. SEARS, ROEBUCK AND CO., a corporation; ELECTROLUX HOME PRODUCTS, INC., a corporation; DOES 1-100, Defendants. DEFENDANTS' RESPONSE TO PLAINTIFF'S NOTICE AND REQUEST FOR RULING ON PENDING DISCOVERY MATTERS Case No. 4:09-cv-05744-CW Class Action

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_________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFF'S NOTICE No. 4:09-cv-05744-CW

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Attorneys for Defendant ELECTROLUX HOME PRODUCTS, INC. (additional attorneys listed on signature page)

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LATHAM & WATKINS LLP Mark S. Mester (Pro Hac Vice) Livia M. Kiser (Pro Hac Vice) Kathleen P. Lally (Pro Hac Vice) 233 South Wacker Drive, Suite 5800 Chicago, Illinois 60606 Telephone: [phone] Facsimile: [phone]

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants Sears, Roebuck and Co. and Electrolux Home Products, Inc. (collectively, "Defendants") hereby state as follows in response to Plaintiff's Notice and Request for Ruling on Pending Discovery Matters (Dkt. 121): 1. In the middle of the Labor Day holiday weekend, on Sunday September 5, 2010,

counsel for Plaintiff Martin Murray ("Plaintiff") sent to Defendants a draft "Joint Notice and Request for Ruling on Pending Discovery Matters" and requested that Defendants consent to filing the notice no later than 2:00 p.m. PDT on September 8, 2010. Plaintiff's proposed notice informed Magistrate Judge James that the stay previously imposed in this case had been lifted and requested that she rule on certain pending discovery motions (Dkt. 82-85). 2. Defendants replied to Plaintiff's request on September 8, 2010, and informed Plaintiff

that while Defendants had no objection to notifying Magistrate Judge James that the stay had been lifted and would work with Plaintiff to finalize a joint notice agreeable to all parties, Defendants also believed that it would make logical sense to request that Magistrate Judge James continue to hold the previously filed discovery motions in abeyance until after the initial Case Management Conference ("CMC") with Judge Wilken on September 14, 2010. 3. Defendants' primary objections to Plaintiff's discovery requests were both the stay and Specifically, and consistent with authority in this and other circuits,

the scope of discovery.

Defendants have proposed bifurcating discovery so that class discovery is addressed before merits discovery. See, e.g., Armstrong v. Davis, 275 F.3d 849, 872 n.28 (9th Cir. 2001) (the district court "may limit [ ] discovery to class certification issues"). Plaintiff, however, does not agree that

discovery should be bifurcated, and therefore, Defendants' objection to the scope of discovery remains an issue. Defendants expect to address the issue of bifurcation at the CMC before Judge Wilken next Tuesday. Judge Wilken's decision regarding bifurcation will, in turn, affect the parties' discovery disputes and almost certainly necessitate that the parties meet and confer again to discuss any remaining areas of disagreement. 4. Accordingly, Defendants suggested to Plaintiff that it would be in the interest of

efficiency and economy to allow Judge Wilken to make a decision regarding bifurcation and further to _________________________________________________________________________ 1 DEFENDANTS' RESPONSE TO PLAINTIFF'S NOTICE No. 4:09-cv-05744-CW

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allow the parties to meet and confer in light of Judge Wilken's decision prior to requesting that Magistrate Judge James rule on the pending discovery motions filed by Plaintiff. 5. Plaintiff, rather than working cooperatively with Defendants or taking the course that

will most efficiently use the parties' and the Court's resources, decided to unilaterally file his Notice and Request for Ruling on Pending Discovery Matters and request that Magistrate Judge James immediately rule upon the pending discovery motions. 6. Defendants, however, continue to believe that it makes logical sense and will be far

more efficient if the previously filed discovery motions are held in abeyance until after the CMC with Judge Wilken next Tuesday and pending further meet and confer efforts between the parties. WHEREFORE, Defendants respectfully request that the pending discovery motions (Dkt. 8285) be held in abeyance until after the CMC before Judge Wilken on Tuesday, September 14, 2010 and after further meet and confer efforts between the parties following Judge Wilken's guidance on the question of bifurcation of discovery. Respectfully submitted, Dated: September 9, 2010 /s/Philip M. Oliss Attorney for Defendant SEARS, ROEBUCK AND CO. SQUIRE, SANDERS & DEMPSEY LLP Philip M. Oliss (Pro Hac Vice) [e-mail] 4900 Key Tower 127 Public Square Cleveland, OH 44114 Telephone: [phone] Facsimile: [phone]

SQUIRE, SANDERS & DEMPSEY LLP Mark C. Dosker (CA Bar # 114789) / Julie E. Schwartz (CA Bar #260624) [e-mail] / [e-mail] 275 Battery Street, Suite 2600 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone]

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LATHAM & WATKINS LLP Darius Ogloza (CA Bar # 176983) [e-mail] 505 Montgomery Street, Suite 2000 San Francisco, California 94111-6538 Telephone: [phone] Facsimile: [phone] Dated: September 9, 2010

Respectfully submitted, /s/ Kathleen P. Lally Attorney for Defendant ELECTROLUX HOME PRODUCTS, INC. LATHAM & WATKINS LLP Mark S. Mester (Pro Hac Vice) Livia M. Kiser (Pro Hac Vice) Kathleen P. Lally (Pro Hac Vice) [e-mail] / [e-mail] / [e-mail] 233 South Wacker Drive, Suite 5800 Chicago, Illinois 60606 Telephone: [phone] Facsimile: [phone]

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