Sherman v. Yahoo! Inc.

Filing 92

ORDER Granting In Part 91 Joint Ex Parte Motion to (1) Continue the Depositions of Yahoo! Inc. and Plaintiff Rafael Sherman and Susan Pathman, and (2) Modify the Confidentiality Protective Order. Signed by Magistrate Judge William V. Gallo on 1/23/2015. (srm)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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RAFAEL DAVID SHERMAN and SUSAN PATHMAN, individually and on
behalf of all others similarly situated,
Plaintiffs,

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v.
YAHOO! INC., a Delaware
Corporation,
Defendant.

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Case No. 13-cv-00041-GPC-WVG
ORDER GRANTING IN PART THE
JOINT EX PARTE MOTION TO (1)
CONTINUE THE DEPOSITIONS
OF YAHOO! INC. AND
PLAINTIFF RAFAEL SHERMAN
AND SUSAN PATHMAN, AND (2)
MODIFY THE
CONFIDENTIALITY
PROTECTIVE ORDER (Doc. No.
91).

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Before the Court is the Joint Ex Parte Motion to (1) Continue the

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Depositions of Yahoo! Inc. and Plaintiff Rafael Sherman and Susan Pathman, and

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(2) Modify the Confidentiality Protective Order (“Motion”), filed by Mr. Sherman

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and Ms. Pathman (“Plaintiffs”) as well as Yahoo! Inc. (“Yahoo” or “Defendant”)

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(collectively, “Parties”) on January 21, 2015. (Doc. No. 91.) “[I]n an effort to

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accommodate the parties’ desire to coordinate discovery with the plaintiffs in

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parallel actions concurrently pending in the United States District Court for the

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Northen District of Illinois” (“Illinois proceedings”) and for the sake of greater

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perceived “efficiency,” the Parties have agreed to take a consolidated Federal Rule

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of Civil Procedure 30(b)(6) (“Rule 30(b)(6)”) deposition of Defendant and partly

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modify the protective orders entered in both this case and the Illinois proceeding1/

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(Id. at 2–3.) Additionally, due to outstanding discovery disputes, for which no detail

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has been provided in the Motion, the Parties have already decided to continue the

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deposition of Ms. Pathman to a date after the present fact discovery cutoff date. (Id.

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at 3.) They hasten to emphasize their consistent meet-and-confer efforts. (Id.) For

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these reasons, they propose the following new dates: a deadline of (1) March 20,

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2015, for conducting the Rule 30(b)(6) deposition of Defendant and the deposition

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of Ms. Pathman; (2) 21 days within which the Honorable Gonzalo P. Curiel of the

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United States District Court for the Southern District of California (“District Court”)

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rules on Plaintiff Rafael Sherman’s motion to dismiss (“MTD”) (Doc. No. 71) for

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the deposition of Mr. Sherman; (3) of the same number of days as the Parties

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eventually choose to continue the depositions of Yahoo, Ms. Pathman, and Mr.

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Pathman for the completion of class-related discovery; and (4) of 34 days from the

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last deposition of Yahoo for the filing of Plaintiff’ Motion for Class Certification.

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(Id. at 4–5.)

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While the Court does not question the Parties’ good faith efforts, it finds

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the dates and time lines proposed to be problematic for two reasons. First, as the

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previous awkward encapsulation makes clear, several of these dates are presently

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indeterminate and self-evidently ambiguous; they may come to pass in days, weeks,

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or month in a case already more than two years old. Relatedly, moreover, the

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variable windows suggested and the two month extension sought will only further

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delay this proceeding and prevent its efficient adjudication. By explicit rule, a

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scheduling order “controls the course of action unless the court modifies it[],” FED.

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R. CIV. P. 16(d) (“Rule 16(d)”), and the mandate of Rule 16(d) must always “be

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taken seriously,” Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994).

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Otherwise, “efficient case management,” this procedural precept’s animating

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purpose, would be needlessly endangered, the very problems it was designed to

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1/

The modified protective order will be granted by this Court in a separate document.
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minimize effectively unmitigated. Stanley v. Huntington Nat’l Bank, 492 F. App’x

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456, 461 (4th Cir. 2012); Fujita v. United States, 416 F. App’x 400, 402 n.6 (5th

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Cir. 2011) (“[S]uch [scheduling] orders and their enforcement are regarded as the

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essential mechanism for cases becoming trial-ready in an efficient, just, and certain

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manner.” (quoting Rouse v. Farmers State Bank of Jewell, Iowa, 866 F. Supp. 1191,

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1198 (N.D. Iowa 1994))); cf. Pavelic & LeFlore v. Marvel Entm’t Grp., 493 U.S.

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120, 123–26, 110 S. Ct. 456, 458–60, 107 L. Ed. 2d 438 (1989) (interpreting Rule

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11 in light of its plain meaning and obvious purposes). Indeed, as the United States

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Court of Appeals for the Ninth Circuit has said, modification of deadlines threatens

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a “court’s ability to control its own docket” and both “disrupt[s] the agreed-upon

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course of ligitation[] and [may] reward[s] the indolent and cavalier.” Johnson v.

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Mammoth Recreations, 975 F.2d 604, 610 (9th Cir. 1992) (citation omitted). All

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these concerns weigh heavily here, for on December 19, 2014, this Court expressly

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reminded the Parties of the very deadlines they now seek to amend. (Doc. No. 89.)

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Nonetheless, in light of the Parties’ arguments and the apparent need for

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some temporal tinkering, some deadlines’ modification is merited. As such, this

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Court will grant the Motion only in part. It thus modifies any prior scheduling orders

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and sets forth the following schedule for the Parties to follow:

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(1)

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January 24, 2015, to any date agreed upon by the parties and the parties

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to the parallel actions pending in the Northern District of Illinois

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(Johnson v. Yahoo! Inc., No. 14-cv-2028 (N.D. Ill.) and Calderin v.

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Yahoo! Inc., 14-cv-2753 (N.D. Ill.)), but in no event later than

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The Fed. R. Civ. P. 30(b)(6) deposition of Yahoo is continued from

February 27, 2015;
(2)

The deposition of Ms. Pathman is continued from January 17, 2015, to a
date agreed upon by the parties, but in no event later than February 27,
2015;

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(3)

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27, 2015, unless the District Court has granted the MTD before that date;
(4)

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The class discovery deadline of January 30, 2015, is continued to
February 27, 2015, whether or not the District Court has rendered a

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The deposition of Mr. Sherman will take place no later than February

decision on the MTD; and
(5)

The deadline for plaintiffs to file their Motion for Class Certification is
continued from February 27, 2015, to March 27, 2015.

IT IS SO ORDERED.

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DATED: January 23, 2015

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Hon. William V. Gallo
U.S. Magistrate Judge

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