Nilon v. Natural-Immunogenics Corp et al

Filing 83

ORDER denying 74 Motion for Contempt and Imposition of Sanctions. As to the parties' unresolved discovery dispute, IT IS FURTHER ORDERED that no later than February 17, 2015, Defendants counsel shall produce Natural Immunogenics' Califor nia sales figures from March 4, 2008 to September 24, 2014, which is the time period suggested by Plaintiff's counsel and is in accordance with Judge Burns' April 15, 2014 Order. Signed by Magistrate Judge Bernard G. Skomal on 2/3/15. (kas)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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ANDREW NILON, individually and )
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on behalf of all other similarly
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Plaintiff,
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14 NATURAL-IMMUNOGENICS
CORP.; and DOES 1-25, Inclusive, )
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Defendant.
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______________________________ )
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Case No: 3:12-cv-00930-LAB (BGS)
ORDER DENYING PLAINTIFF’S
MOTION FOR CONTEMPT AND
MONETARY SANCTIONS
[ECF No. 74.]

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I. INTRODUCTION
Pending before the Court is Plaintiff’s Motion for Contempt and Imposition of
Sanctions against attorney Carlos Negrete. Plaintiff seeks to hold Defendant’s counsel
in contempt for failure to comply with the October 27, 2014 Order of the Court
requiring Defendant to produce its California sales figures pursuant to protective order.
[ECF No. 74.] On December 16, 2014, the Honorable Larry A. Burns, referred
Plaintiff’s motion for contempt and monetary sanctions for decision. [ECF No. 75 at
1:19-20.] After careful consideration of the parties’ briefing and exhibits filed in
support, Plaintiff’s Motion for Contempt and Monetary Sanctions is DENIED.

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II. PROCEDURAL AND FACTUAL BACKGROUND
On October 27, 2014, the Court granted Plaintiff’s motion to compel California

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sales figures from defendant Natural Immunogenics. [ECF No. 72.] As part of the

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Court’s order, counsel for the parties were ordered to meet and confer about the

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production of the sales figures pursuant to protective order on or before November 5,

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2014. Defendant was also given until November 21, 2014, to produce the California

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sales figures. Id.

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Counsel met and conferred about the supplemental production, albeit two weeks
after the Court-ordered deadline to do so, on December 4, 2014. The following issue

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arose in the meet-and-confer process: Defendant contended that it needed to establish a

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class period for searching the Natural Immunogenics’ sales database and proposed

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March 5, 2008 to September 14, 2012. Plaintiff’s counsel disagreed with that time

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frame and suggested a class period of March 4, 2008 to September 24, 2014.

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The District Court certified this case for class treatment on April 15, 2014. [ECF

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No. 41.] The certified class as defined in Judge Burns’ Order granting Plaintiff’s

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motion for class certification is as follows: “All persons located within California who

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purchased any Sovereign Silver Products either from a retail location or over the

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internet at any time during the four years preceding the filing of this complaint

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through the date of trial in this action.” Id. at 5:16-18 (emphasis added).

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Despite the District Court’s order of April 15, 2014, which clearly states the

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parameters of the class period at issue in this case, and which this court referenced in

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its own Order granting Plaintiff’s motion to compel, [ECF No. 72 at 5:25-6:2], counsel

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could not come to an agreement as to the proper time period to be searched. Defendant

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argues that this inability to agree on a time period has prevented it from producing

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sales figures. Specifically, Defendant argues its computer system is not designed to

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identify the sales from only one particular state, so it has to hire an outside information

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technology firm to reconfigure Defendant’s software in order to formulate the

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California figures ordered by the Court and it needs a designated time period to make
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the search of its database feasible.

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Instead of jointly contacting the chambers of Judge Skomal regarding this

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dispute, which clearly concerns discovery and Judge Skomal’s October 27, 2014 Order

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requiring Defendant to produce California sales figures, Plaintiff filed a Motion for

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Contempt and Imposition of Sanctions for the attention of the District Court on

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December 8, 2014. [ECF No. 73.] This conduct violated Judge Skomal’s chambers

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rules which require counsel to jointly contact the Court when they have not resolved a

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discovery dispute. In fact, neither party, either jointly or separately, contacted Judge

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Skomal to report the class period discovery dispute. As a result and as noted in the

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Introduction section above, Judge Burns referred Plaintiff’s improperly filed motion

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for contempt and monetary sanctions to Judge Skomal for decision on December 16,

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2014. [ECF No. 75 at 1:19-20.]

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III. STANDARD OF REVIEW

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Judge Skomal’s chambers rules and Civil Local Rule 26.1 require counsel to

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meet and confer in-person or telephonically concerning any disputed issue before the

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Court will entertain a motion. Civ. Local R. 26.1(a). Judge Skomal’s chambers rules

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state in pertinent part: “If the parties have not resolved any dispute pertaining to Rule

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26 through 37 and Rule 45, Fed. R. Civ. P., through the meet and confer process,

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counsel for all interested parties must promptly and jointly contact Judge Skomal’s

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chambers....The Court will either set a telephonic discovery conference or advise the

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parties to file a motion.”

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IV. DISCUSSION

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Over the course of discovery in this matter, it has become apparent that counsel

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for the parties are hostile toward each other and refuse to work together to follow the

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chambers’ rules, which were designed to facilitate cooperation and streamline the often

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arduous discovery process. The impasse facing counsel concerning the dates of the

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class period could have easily been resolved by reference to Judge Burn’s April 15,

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2014 Order or Judge Skomal’s October 27, 2014 Order granting Plaintiff’s motion to
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compel. [ECF No. 41 at 5:16-18; ECF No. 72 at 5:25-6:2]. Instead of contacting the

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court for guidance on the parameters of the class period for purposes of this discovery,

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plaintiff’s counsel ignored Judge Skomal’s chambers’ rules and filed a discovery

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motion masked as a motion for contempt and imposition of sanctions directly with the

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District Judge. This behavior was an unnecessary and counter productive reaction to a

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legitimate, but minor discovery dispute. Plaintiff’s motion was improperly filed and

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had he filed it directly with Judge Skomal, instead of attempting to circumvent the

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rules, it would have been rejected upon discrepancy order. Plaintiff’s motion for

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contempt and sanctions was unauthorized and is not properly before the Court. The

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Court rejects Plaintiff’s attempt to turn a simple discovery dispute into a needless

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motion for contempt and sanctions. Accordingly, Plaintiff’s motion for contempt and

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sanctions1 is DENIED for failure to follow the Court’s discovery motion procedures.

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In Plaintiff’s motion, it requests the District Court reconsider that portion of Judge
Skomal’s October 27, 2014 Order granting Plaintiff’s motion to compel which denied to award
sanctions against defense counsel for failure to produce national sales figures as requested by
Plaintiff’s Request for Production 44 through 48. Plaintiff’s request for reconsideration is denied
because: (1) the request is untimely under Judge Burns’ chambers’ rule 9(a) and Fed. R. Civ. P.
72 (a) which sets a 14-day deadline for filing an objection to the Magistrate Judge’s discovery
ruling; and (2) the request does not identify newly-discovered evidence, clear error or a change in
controlling law warranting reconsideration. Specifically, Plaintiff argues Judge Skomal did not
take into account the tolling it gave to the parties when it found an award of sanctions against
defendant counsel would be unjust in its October 27, 2014 Order. Plaintiff’s counsel is incorrect.
As detailed in the October 27, 2014 Order, the Court found two applicable exceptions to an
imposition of sanctions; one exception was based on the merits of the discovery dispute and the
second exception was based on the timing of the dispute. The Court correctly found: (a) there was
substantial justification for the dispute that weighed against the imposition of sanctions because
Plaintiff’s RFPs were overbroad and irrelevant, and (b) an award of expenses would be unjust
where the parties did not notify the Court that a supplemental production of sales figures would
fall past the 30-day deadline to notify the Court of a discovery dispute. Plaintiff’s reference to the
Court’s grant of a eight-day tolling period from July 22nd to July 30, 2014 to notify it of a
discovery dispute has absolutely no bearing on an undefined agreement between counsel to make
a supplemental production that was scheduled to occur three weeks after the July 30, 2014 tolling
period expired on either August 21, 2014, [ECF No. 66-1 at 4-5] or within five days of the
District Court’s ruling on Plaintiffs’ Motion to Substitute Class Representative in this action,
which would have occurred on or about August 27, 2014. [ECF No. 69 at 3.]
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V. CONCLUSION
As detailed above, Plaintiff’s motion for contempt and imposition of sanctions is

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DENIED.
As to the parties’ unresolved discovery dispute, IT IS FURTHER ORDERED

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that no later than February 17, 2015, Defendant’s counsel shall produce Natural

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Immunogenics’ California sales figures from March 4, 2008 to September 24, 2014,

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which is the time period suggested by Plaintiff’s counsel and is in accordance with

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Judge Burns’ April 15, 2014 Order. See ECF No. 41 at 5:16-18 (defining the class as

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“All persons located within California who purchased any Sovereign Silver Products

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either from a retail location or over the internet at any time during the four years

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preceding the filing of this complaint through the date of trial in this action.”)

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(emphasis added); see also ECF No. 41 at 14:16-19 (certifying the putative class in this

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case).

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DATED: February 3, 2015

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Hon. Bernard G. Skomal
U.S. Magistrate Judge
United States District Court

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