Lindsey v. Elsevier Inc. et al

Filing 37

ORDER Following Discovery Conference. Signed by Magistrate Judge Louisa S Porter on 1/27/17.(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16-cv-00959-GPC (DHB)

DUNCAN LINDSEY,
Plaintiff,

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v.

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ORDER FOLLOWING DISCOVERY
CONFERENCE

ELSEVIER INC., et al.,
Defendants.

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On January 25, 2017, the Court held a telephonic Discovery Conference with

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counsel for Plaintiff Duncan Lindsey (“Plaintiff”) and Defendants Elsevier Inc., Elsevier

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B.V., and Elsevier, Ltd. (collectively, “Defendants”). (See ECF No. 36.) In its December

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22, 2016 Order, the Court set the Discovery Conference in order to discuss potential

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bifurcation of the case between liability and damages, and the status of discovery. (ECF

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No. 31.)

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To the extent it was not previously clear from the Court’s December 22, 2016 Order,

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all prior motions to compel are hereby DENIED WITHOUT PREJUDICE. (See ECF

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Nos. 24, 30.) After hearing arguments from the parties during the Discovery Conference,

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the Court also DENIES Defendants’ motion to bifurcate and stay discovery. (See ECF No.
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27.) As discussed during the Settlement Conference, the Court does not find any further

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phasing of discovery or bifurcation to be appropriate. Phase I of discovery did not meet its

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goal of enabling the parties the discuss settlement. Instead, it wasted nine months,

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accomplished little, and left the parties in a discovery quagmire. Accordingly, the Court

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finds good cause to issue an Amended Scheduling Order opening up discovery on all

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issues.1 The parties should therefore proceed with full discovery within the parameters

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discussed during the Discovery Conference and as laid out below.

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1.

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The existing Protective Order in this case protects the confidentiality of trade secrets,

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but does not contain an “Attorney’s Eyes Only” provision. (ECF No. 18.) The Protective

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Order may, however, be modified by the parties or by the Court “for good cause, or in the

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interest of justice, or on its own order at any time in these proceedings.” (See id. at p. 9.)

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In light of Plaintiff’s alleged threats that discovery in this matter “could lead to other

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customer lawsuits,”2 the Court reminds Plaintiff of both his confidentiality obligations

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under the Protective Order and the Court’s ability to modify the Protective Order at any

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time in these proceedings.

Protective Order

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As discussed during the Discovery Conference, if, during the course of these

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proceedings, a party believes a trade secret cannot or will not be protected absent an

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“Attorney’s Eyes Only” provision, the party may move to modify the Protective Order as

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to that trade secret.3 In any Joint Motion for Modification of the Protective Order, the party

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seeking protection must establish that the information sought is in fact a trade secret, and

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The Court will not consider any prior discovery requests, to the extent they
are withdrawn, as counting towards the parties’ limitations on discovery. See e.g., Fed. R.
Civ. P. 33; Civ. L.R. 33.1, 36.1.
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See ECF No. 35 at p. 5 n. 1.
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The Court advises the parties that this should not be viewed as an opportunity
to re-litigate the prior Joint Motion Re: Disputed Protective Order. (See ECF No. 12.)
There must be a specific, non-speculative changed circumstance.
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that its disclosure would be harmful to the party’s interest in the property. Nutratech, Inc.

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v. Syntech (SSPF) Int’l, Inc., 242 F.R.D. 552, 554-550 (C.D. Cal. 2007). The party seeking

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disclosure must then establish that the information is relevant to the party’s claims or

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defenses or the subject matter of the lawsuit, and is necessary to prepare the case for trial.

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Id. at 555.

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If a party fails to comply with the Protective Order, at any time, the Court advises

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that it will not hesitate to impose “any and all sanctions authorized by statute or rule or

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within the inherent power of the court, including, without limitation, dismissal of any

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actions, entry of default, finding of contempt, imposition of monetary sanctions or

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attorneys’ fees and costs, and other lesser sanctions.” See Civ. L.R. 83.1.

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2.

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As stated in Federal Rule of Civil Procedure 26(b), discovery is limited to “any

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nonprivileged matter that is relevant to any party’s claim or defense and proportional to

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the needs of the case, considering the importance of the issues at stake in the action, the

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amount in controversy, the parties’ relative access to relevant information, the parties’

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resources, the importance of the discovery in resolving the issues, and whether the burden

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or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1)

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(emphasis added).

Discovery

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As discussed during the Discovery Conference, absent a compelling argument not

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presently before the Court, the Court advises that discovery concerning what third parties

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“intended” when they entered their own contracts with Defendants is not relevant. The

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Court further advises that it will not hesitate to order payment of attorney’s fees and costs

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going forward as set forth in Federal Rule of Civil Procedure 37. The Court will also

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consider cost-shifting if discovery appears unduly burdensome or expensive. See Fed. R.

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Civ. P. 26(c)(1)(B); OpenTV v. Liberate Techs., 219 F.R.D. 474, 475-76 (N.D. Cal. 2003);

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Nehad v. Browder, No. 15-cv-1386 WQH NLS, 2016 WL 3769807, at *3 (S.D. Cal. July

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15, 2016).

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The Court will separately issue an Amended Scheduling Order. If the parties need

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to modify the Amended Scheduling Order, they may do so by Joint Motion and upon a

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showing of good cause.

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IT IS SO ORDERED.
Dated: January 27, 2017
_________________________
LOUISA S PORTER
United States Magistrate Judge

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