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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*E-FILED 04-20-2011*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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COALITION FOR ICANN TRANSPARENCY,
INC.,

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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,
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v.
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VERISIGN, INC.,
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[Re: Docket Nos. 273 and 328]

Defendant.
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/
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Defendant Verisign, Inc. (Verisign) moves for sanctions for what it says has been an

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ongoing pattern of discovery misconduct by plaintiff in discovery. Plaintiff Coalition for

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ICANN Transparency (CFIT) opposes the motion. The matter is deemed appropriate for

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determination without oral argument, and the April 26, 2011 hearing is vacated. CIV. L.R. 7-

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1(b). Upon consideration of the moving papers, and good cause appearing, Verisign’s motion is

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denied, as is its motion for leave to file supplemental briefing.

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In essence, Verisign says that it has unearthed evidence demonstrating that CFIT lied

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about its membership in its pleadings and that CFIT either lacked standing to pursue this

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lawsuit from the outset—or, alternatively, lost any standing it may have had before it filed the

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Second Amended Complaint. Verisign also argues that CFIT has shirked its discovery

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obligations and failed to comply with prior court orders. Defendant does not, however, move to

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compel further discovery. Rather, Verisign argues that discovery produced by CFIT is deficient

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because, in Verisign’s view and based on other information Verisign says it has obtained, the

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discovery responses contain allegations about CFIT’s purported membership that are

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unsupported by any evidence, inaccurate, and inconsistent with CFIT’s prior representations to

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the court. (See, e.g., Reply at 9). CFIT disagrees with defendant’s characterizations of the

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facts.

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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

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For the Northern District of California

evidentiary sanctions deeming certain matters admitted and precluding CFIT from presenting

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United States District Court

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says it incurred when plaintiff unilaterally cancelled CFIT’s corporate deposition.

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With the exception of the request for reimbursement of costs re the cancelled deposition,

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Verisign’s motion seeks dispositive relief that is not appropriately before this court.

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Accordingly, Verisign’s motion for dismissal and evidentiary sanctions is denied without

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prejudice to seek that relief, as may be appropriate, from Judge Whyte.

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As for Verisign’s request for reimbursement of costs incurred when CFIT cancelled its

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deposition, the record presented indicates that after an initial skirmish over dates, Verisign

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agreed to proceed with CFIT’s deposition on January 19, 2011. On January 14, 2011, several

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days before the re-scheduled deposition was to occur, CFIT advised that it would not produce a

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deponent because it had learned of a reported conflict of interest concerning defense counsel’s

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representation in this matter. (Blackburn Decl., Ex. 33). Additionally, plaintiff’s counsel stated

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that they were, at that time, unsure whether CFIT was a proper party. (Id.). The record

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indicates that CFIT raised its concerns about the conflict issue within hours after learning about

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it (Fausett Decl., Ex. 12), but that the issue was not resolved until after defense counsel sent a

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proposed conflict waiver agreement on January 17, 2011. On the record presented, this court

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cannot say that CFIT’s stated concerns about proceeding with the deposition were unjustified.

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Verisign’s motion for reimbursement of costs therefore is denied. FED. R. CIV. P. 37(d)(3).

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SO ORDERED.
Dated:

April 20, 2011
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

United States District Court

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5:05-cv-04826-RMW Notice has been electronically mailed to:

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Angel Lisa Tang [e-mail], [e-mail],
[e-mail], [e-mail],
[e-mail]

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Bret Alan Fausett [e-mail], [e-mail],
[e-mail], [e-mail], [e-mail]

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Brian K. Condon

[e-mail]

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Courtney Mattson Schaberg

[e-mail]

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Eric Patrick Enson

[e-mail]

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Imani Gandy

[e-mail]

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James Frederic Speyer [e-mail], [e-mail],
[e-mail]

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For the Northern District of California

United States District Court

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James S. Blackburn

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Jason C. Murray

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Jeffrey Alan LeVee

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Kelly Anne Welchans [e-mail], [e-mail],
[e-mail]

[e-mail], [e-mail]

[e-mail]
[e-mail], [e-mail]

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Laurence J. Hutt [e-mail], [e-mail],
[e-mail]

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Reginald Roberts

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Sean William Jaquez

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Tricia Anne Cross , Esq

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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.

[e-mail]
[e-mail]
[e-mail], [e-mail]

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