Coalition for ICANN Transparency, Inc. v. Verisign, Inc. et al

Filing 330

ORDER by Magistrate Judge Howard R. Lloyd denying 273 defendant's Motion for Discovery; denying 328 defendant's Motion Motion for Leave to File Supplemental Briefing. 4/26/2011 motion hearing is vacated. (hrllc2, COURT STAFF) (Filed on 4/20/2011)

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1 2 *E-FILED 04-20-2011* 3 4 5 6 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 For the Northern District of California United States District Court 7 COALITION FOR ICANN TRANSPARENCY, INC., 12 No. C05-04826 RMW (HRL) ORDER (1) DENYING DEFENDANT’S MOTION FOR SANCTIONS; AND (2) DENYING DEFENDANT’S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING Plaintiff, 13 v. 14 VERISIGN, INC., 15 [Re: Docket Nos. 273 and 328] Defendant. 16 / 17 18 Defendant Verisign, Inc. (Verisign) moves for sanctions for what it says has been an 19 ongoing pattern of discovery misconduct by plaintiff in discovery. Plaintiff Coalition for 20 ICANN Transparency (CFIT) opposes the motion. The matter is deemed appropriate for 21 determination without oral argument, and the April 26, 2011 hearing is vacated. CIV. L.R. 7- 22 1(b). Upon consideration of the moving papers, and good cause appearing, Verisign’s motion is 23 denied, as is its motion for leave to file supplemental briefing. 24 In essence, Verisign says that it has unearthed evidence demonstrating that CFIT lied 25 about its membership in its pleadings and that CFIT either lacked standing to pursue this 26 lawsuit from the outset—or, alternatively, lost any standing it may have had before it filed the 27 Second Amended Complaint. Verisign also argues that CFIT has shirked its discovery 28 1 obligations and failed to comply with prior court orders. Defendant does not, however, move to 2 compel further discovery. Rather, Verisign argues that discovery produced by CFIT is deficient 3 because, in Verisign’s view and based on other information Verisign says it has obtained, the 4 discovery responses contain allegations about CFIT’s purported membership that are 5 unsupported by any evidence, inaccurate, and inconsistent with CFIT’s prior representations to 6 the court. (See, e.g., Reply at 9). CFIT disagrees with defendant’s characterizations of the 7 facts. 8 Verisign seeks an order of dismissal, or alternatively, an order imposing various any evidence on particular issues. Additionally, Verisign seeks reimbursement of $969.14 it 11 For the Northern District of California evidentiary sanctions deeming certain matters admitted and precluding CFIT from presenting 10 United States District Court 9 says it incurred when plaintiff unilaterally cancelled CFIT’s corporate deposition. 12 With the exception of the request for reimbursement of costs re the cancelled deposition, 13 Verisign’s motion seeks dispositive relief that is not appropriately before this court. 14 Accordingly, Verisign’s motion for dismissal and evidentiary sanctions is denied without 15 prejudice to seek that relief, as may be appropriate, from Judge Whyte. 16 As for Verisign’s request for reimbursement of costs incurred when CFIT cancelled its 17 deposition, the record presented indicates that after an initial skirmish over dates, Verisign 18 agreed to proceed with CFIT’s deposition on January 19, 2011. On January 14, 2011, several 19 days before the re-scheduled deposition was to occur, CFIT advised that it would not produce a 20 deponent because it had learned of a reported conflict of interest concerning defense counsel’s 21 representation in this matter. (Blackburn Decl., Ex. 33). Additionally, plaintiff’s counsel stated 22 that they were, at that time, unsure whether CFIT was a proper party. (Id.). The record 23 indicates that CFIT raised its concerns about the conflict issue within hours after learning about 24 it (Fausett Decl., Ex. 12), but that the issue was not resolved until after defense counsel sent a 25 proposed conflict waiver agreement on January 17, 2011. On the record presented, this court 26 cannot say that CFIT’s stated concerns about proceeding with the deposition were unjustified. 27 28 2 1 Verisign’s motion for reimbursement of costs therefore is denied. FED. R. CIV. P. 37(d)(3). 2 3 4 SO ORDERED. Dated: April 20, 2011 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 5:05-cv-04826-RMW Notice has been electronically mailed to: 2 Angel Lisa Tang,,,, 3 4 Bret Alan Fausett,,,, 5 Brian K. Condon 6 Courtney Mattson Schaberg 7 Eric Patrick Enson 8 Imani Gandy 9 James Frederic Speyer,, 11 For the Northern District of California United States District Court 10 James S. Blackburn 12 Jason C. Murray 13 Jeffrey Alan LeVee 14 Kelly Anne Welchans,,,, 15 16 Laurence J. Hutt,, 17 Reginald Roberts 18 Sean William Jaquez 19 Tricia Anne Cross , Esq 20 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court’s CM/ECF program., 21 22 23 24 25 26 27 28 4

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