Stoba et al v. Saveology.com, LLC et al

Filing 200

ORDER denying Plaintiffs Daphne Stoba and George Stoba's 179 Motion for Reconsideration of Magistrate Judge's Order Denying Additional Discovery Re: Domain Name Agreement. Court orders the parties to appear for oral argument set for 8/3 1/2016 02:30 PM in Courtroom 4B before Judge Cynthia Bashant re 99 MOTION to Certify Class, 190 MOTION to Exclude Declaration, Opinions and Testimony of Gerald Borlin, 191 MOTION to Exclude Declaration, Opinions, and Testimony of Lisa Mullins, and 192 MOTION to Exclude Declaration, Opinions, and Testimony of Jeffrey A. Hansen. Plaintiffs must file their reply brief to the class certification motion by 8/10/2016. Local Rule 7.1(e) governs the deadlines for the Dfts' three motions to exclude evidence. Signed by Judge Cynthia Bashant on 8/4/2016. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GEORGE STOBA and DAPHNE
STOBA, on behalf of themselves and
others similarly situated,

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Plaintiffs,
v.

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SAVEOLOGY.COM, LLC;
ELEPHANT GROUP, INC, and TIME
WARNER CABLE INC.,
Defendants.

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CASE NO. 13-CV-2925-BAS-NLS
ORDER:
(1) DENYING PLAINTIFFS’
MOTION FOR RECONSIDERATION
OF MAGISTRATE JUDGE’S ORDER
DENYING ADDITIONAL
DISCOVERY RE: DOMAIN NAME
AGREEMENT
[Doc. No. 179]; and
(2) SETTING ORAL ARGUMENT ON
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION
[Doc. Nos. 99, 190, 191, & 192]

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Plaintiffs George and Daphne Stoba filed a “motion for reconsideration” of
18 the Magistrate Judge’s June 3, 2016 Order denying their ex parte application to
19 conduct further discovery. Plaintiffs requested an un-redacted copy of the Domain
20 Name Ownership Agreement and a deposition regarding the document to prepare
21 for their pending class certification motion. The Court treats the filing as an
22 objection pursuant to Federal Rule of Civil Procedure 72(a). The Court affirms the
23 Magistrate Judge’s Order, which held that the material is not relevant to the class
24 certification phase, but allowed Plaintiffs to renew their request during merits
25 discovery.
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The Court will hear oral argument on the motion for class certification on

27 Wednesday, August 31, 2016 at 2:30 p.m. Plaintiffs must file their reply brief, if
28 any, on or before August 10, 2016.
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13-CV-2925

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Background
Plaintiffs allege that Defendants Saveology.com, LLC, Elephant Group, Inc.,

3 and Time Warner Cable Inc. violated California’s privacy laws by recording their
4 telephone calls without their consent. Plaintiffs testified that they called a toll-free
5 number that they found on the website www.timewarnercablespecial.com.
6 Defendants moved for summary judgment, in part, on the ground that they did not
7 “own” that website. Plaintiffs contended this was a false statement and sought
8 sanctions. In response, Defendants amended their brief to state they did not
9 “operate” the website, submitted supplemental declarations, and attached a redacted
10 copy of the Domain Name Ownership Agreement. Defendants argued that
11 Bridgevine, Inc., a non-party, operated the web page. Plaintiffs argued that certain
12 terms of the Agreement granted a license to Defendant Time Warner Cable that
13 essentially established an ownership interest in the webpage.
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On May 9, 2016, the Court denied Defendants’ motions for summary

15 judgment and denied Plaintiffs’ motion for sanctions.
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The governing schedule had required Defendants to oppose the class

17 certification motion thirty days after the summary judgment ruling. At the May 9
18 hearing, Defendants requested more time to address discovery matters, and the
19 Court amended the schedule to allow Defendants sixty days to file their brief.
20 Pursuant to the Local Rules, the reply brief would have been due seven days later.
21 Civ. L.R. 7.1(e); Judge Bashant’s Standing Order for Civil Cases ¶ 4B.
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On May 27, 2016, Plaintiffs filed an ex parte motion for an order allowing

23 them to conduct discovery on the new evidence before the hearing on their motion
24 for class certification. Plaintiffs sought an un-redacted copy of the Domain Name
25 Ownership Agreement. They noted that Defendants had not disclosed it until after
26 the deadline for class discovery and that Defendants had blacked out information
27 identifying names and contact information of Bridgevine’s employees.
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The Magistrate Judge held the request was improper procedurally and
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13-CV-2925

1 substantively. First, “they filed it ex parte with no meet and confer and no prior
2 notice to Defendants.” Second, “it seeks discovery that is not relevant to class
3 certification.” [Doc. No. 178 at 7] The Magistrate Judge denied Plaintiffs’
4 discovery motion without prejudice to renewal during the merits phase of discovery.
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Plaintiffs contend the Order is “clearly erroneous” and “contrary to law.” 28

6 U.S.C. § 636(b)(1)(A); Fed. R. Civ. Pro. 72(a).
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A. Meet and Confer Requirement

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Plaintiffs object to the Magistrate Judge’s fact finding that they did not

9 comply with the meet and confer requirement.
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Counsel must attempt to resolve a dispute before filing a discovery motion.

11 Civ. L.R. 26.1(a); see Fed. R. Civ. P. 37(a) (a party may move for discovery if
12 “movant has in good faith conferred” with opponent to obtain it). The meet and
13 confer requirement is specific. “If counsel have offices in different counties, they
14 are to confer by telephone. Under no circumstances may the parties satisfy the meet
15 and confer requirement by exchanging written correspondence.” Civ. L.R. 26.1(a);
16 accord Judge Stormes’ Chambers Rules § VI(A) (“If counsel are located in different
17 districts, then telephone or video conference may be used. In no event will meet
18 and confer letters, facsimiles or emails satisfy this requirement.”).
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Plaintiffs argue they satisfied this requirement during the May 16, 2016

20 telephone conversation and related email messages.
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The record does not support this argument. During the May 16 conversation,

22 Plaintiffs requested an un-redacted Domain Name Agreement and a Rule 30(b)(6)
23 witness, but thereafter the parties exchanged email correspondence. Keegan Decl. ¶
24 5 & Exs. 4-5 [Doc. No. 175-2]; Feldman Decl. ¶ 28 [Doc. No. 169-1]. The parties
25 did not resolve the issue on May 16 because defense counsel needed to consult her
26 clients. To fulfill the meet and confer requirement, the parties must discuss the
27 merits of their dispute and attempt to resolve it during a live conversation.
28 Accordingly, the Court overrules Plaintiffs’ objection on this point.
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13-CV-2925

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B. Ex Parte Procedure

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Plaintiffs also object to the Magistrate Judge’s finding that they filed the ex

3 parte without proper “notice” to the Defendants.
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The Local Rules dictate that the opponent must be given reasonable notice

5 when an ex parte motion will be made. Civ. L.R. 83.3(g). Magistrate Judge
6 Stormes’ Civil Case Procedures require that an ex parte application must include
7 “reasonable and appropriate notice to the opposition, and evidence of an attempt to
8 resolve the dispute without the Court’s intervention.” Chambers Rules § II.
9 Advance notice is required because of the extremely short time that opposing
10 counsel has to respond to an appropriate ex parte application – one business day.
11 Id.; see Mission Power Eng’g Co. v. Continental Cas. Co., 883 F. Supp. 488, 49012 92 (C.D. Cal. 1993).
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Plaintiffs contend they satisfied this rule during the telephone call and email

14 exchanges described above. They state “[n]othing more is required.” [Doc. No.
15 179-1 at 11]
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The Court overrules Plaintiffs’ objection. The Magistrate Judge correctly

17 applied her own Chambers rule to the facts. The parties did not complete their
18 discussion of the dispute during the May 16 conversation; instead, they exchanged
19 written emails. Importantly, Mr. Keegan’s declaration does not indicate that he
20 notified opposing counsel that Plaintiffs would pursue an ex parte application.1 See
21 Keegan Decl. ¶ 5 [Doc. No. 175-2]
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C. Relevance of Domain Name Agreement to Class Certification Phase

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Turning to the substance of the dispute, Plaintiffs argue that the requested

24 discovery is relevant to the class certification motion. Plaintiffs contend they will
25 learn “the identity of who answered the calls made to the 888-221-5802 number
26 appearing on the website.” [Doc. No. 175-1 at 5]
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Even if the Court were to consider the content of the email correspondence,
28 Plaintiffs did not inform Defendants that they would be filing an ex parte application.
Keegan Decl., Ex. 4 [Doc. No. 175-7]
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13-CV-2925

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The Court affirms the Magistrate Judge’s legal conclusion. The Court

2 discerns no relevance to the Rule 23 analysis of whether the action is suitable for
3 class treatment. Fed. R. Civ. P. 23. For example, the factors of Rule 23(a)(2) and
4 (b)(3) direct the Court to consider whether there are common issues concerning
5 notice and consent. It is not necessarily important how or where potential class
6 members obtained the telephone number. The audio files and transcripts establish
7 that the Stoba’s conversations were recorded. The Court sees no need for the
8 requested discovery prior to the hearing on the class certification motion.2
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Finally, the Magistrate Judge denied the request without prejudice to seeking

10 it during the merits discovery phase. [Doc. No. 178 at 8 ¶ 6] Plaintiffs may pursue
11 the information later.
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D. Hearing Date on Class Certification Motion

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The Court ORDERS the parties to appear on August 31, 2016 at 2:30 p.m.

14 in Courtroom 4B for oral argument. See Civ. L.R. 7.1(d)(1). The parties should be
15 prepared to discuss all matters concerning the motion for class certification and the
16 recently-filed, related motions to exclude testimony. Plaintiffs must file their reply
17 brief to the class certification motion on or before August 10, 2016. Local Rule
18 7.1(e) governs the deadlines for the Defendants’ three motions to exclude evidence.
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IT IS SO ORDERED.

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21 DATED: August 4, 2016
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_______________________________
Hon. Cynthia Bashant
United States District Judge

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The Court notes that Defendants did not rely on the Agreement in their
opposition brief. [Doc. Nos. 177 at 5 & 194] Also, Plaintiffs have all but one part of
27 the Domain Name Agreement; the exception is the names, phone numbers, and email
addresses of Bridgevine’s employees. [Doc. No. 186 at 6] If Plaintiffs believe the
28 terms of the Agreement advance their position that their lawsuit should be certified as
a class action, they may make that argument at the hearing.
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