Davison Design & Development Inc. et al v. Riley

Filing 157

ORDER by Judge Hamilton granting 153 Motion to Shorten Time; denying in part 152 Motion for Protective Order (pjhlc2, COURT STAFF) (Filed on 10/12/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVISON DESIGN & DEVELOPMENT
INC., et al.,

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Plaintiff(s),

No. C 11-2970 PJH

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v.
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For the Northern District of California

United States District Court

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ORDER GRANTING MOTION TO
SHORTEN TIME AND DENYING
IN PART MOTION FOR PROTECTIVE
ORDER

CATHY RILEY, et al.,
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Defendant(s).
_______________________________/

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On October 2, 2012, defendant Cathy Riley (“defendant”) filed a motion for
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protective order restricting discovery and an administrative motion for an order shortening
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time on the motion for protective order. Defendant has been noticed to appear for
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deposition on October 15, 2012, and seeks a protective order to prevent this “unnecessary”
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discovery. See Dkt. 152. Plaintiffs Spirevision, et al. (“plaintiffs”) filed an opposition brief,
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which rebutted defendant’s arguments both as to the motion to shorten time and as to the
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motion for protective order itself. Most importantly, plaintiffs point out that defendant
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“identifies no harm, let alone substantial harm or prejudice” that would result from allowing
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discovery to move forward. Dkt. 154 at 3. Plaintiffs acknowledge that defendant’s
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counterclaims have already been dismissed, but point out that their declaratory judgment
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action is still pending before the court.1

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Defendant also filed a reply to plaintiffs’ opposition on October 11, 2012. See Dkt. 156.
While defendant’s motion to shorten time purports to proceed under Civil Local Rule
7-11, motions to change time are actually governed by Civil Local Rule 6-3. However, neither
rule provides for the filing of a reply brief, let alone a reply brief that exceeds five pages.
Accordingly, defendant’s reply is stricken.

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Because defendant’s deposition is scheduled to occur before the motion for

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protective order can be heard on a regular briefing schedule, the court GRANTS

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defendant’s motion to shorten time. However, the court finds that plaintiffs do have a right

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to conduct discovery on their still-pending claim for declaratory relief, and because

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defendant has not identified any specific harm or prejudice that would result from her

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deposition, the court DENIES in part defendant’s motion for protective order. To the extent

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that defendant seeks to avoid the October 15 deposition, the motion is denied. To the

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extent that defendant seeks to restrict other forms of discovery, the court will hear the

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motion on the noticed hearing date of November 7, 2012.
Defendant notes that she has concurrently filed a motion for judgment on the

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For the Northern District of California

United States District Court

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pleadings, in which she acknowledges that the court has dismissed her state law claims,

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and that she cannot sue under the federal CAN-SPAM Act. See Dkt. 151. Thus, if

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defendant wishes to stipulate to the declaratory judgment sought by plaintiffs, then any

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need for a deposition would be mooted. Failing such a stipulation, however, plaintiffs’ claim

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remains unresolved and they may take any deposition necessary to establish their

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entitlement to declaratory relief. Defendant is obligated to attend the noticed deposition.

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IT IS SO ORDERED.
Dated: October 12, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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