Romero et al v. Securus Technologies, Inc.

Filing 116

ORDER granting 115 Defendant's Ex Parte MOTION For an Order Preventing the Deposition of Non-Party Frank Clamser From Proceeding on June 28, 2018. Signed by Magistrate Judge Mitchell D. Dembin on 6/27/18. (Dembin, Mitchell)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 JUAN ROMERO, FRANK TISCARENO, and KENNETH ELLIOTT, on behalf of themselves and all others similarly situated, Case No.: 16-cv-1283-JM-MDD 15 v. [ECF NO. 115] 16 SECURUS TECHNOLOGIES, INC., 11 12 13 ORDER STAYING THE DEPOSITION OF NON-PARTY Plaintiffs, FRANK CLAMSER 14 17 Defendant. 18 19 Plaintiffs are two former inmates and a criminal defense attorney, all of 20 whom allegedly used Defendant’s telephone systems to make calls to and 21 from certain correctional facilities in California. Plaintiffs have been seeking 22 to represent a class of individuals whose calls to or from a “private” number, 23 that is, a number designated not to record, were recorded in violation of 24 California’s Invasion of Privacy Act, Cal. Penal Code §§ 630, et seq. 25 Plaintiffs’ Motion for Class Certification was denied without prejudice 26 on April 12, 2018. (ECF No. 93). In denying the motion without prejudice, 27 the district judge stated: “At the present time, Plaintiffs are unable to 1 16-cv-1283-JM-MDD 1 determine the contours of the class because the call logs have yet to be 2 produced in discovery. Plaintiffs may renew their motion for class 3 certification upon receipt of additional discovery.” (ECF No. 93 at 6). 4 Defendants have requested that the Court amend or correct its Order 5 on the grounds that the relevant call logs were produced in discovery. (ECF 6 No. 99 at 4). Plaintiffs dispute that all of the call logs have been produced. 7 (ECF No. 112 at 7-10). Plaintiffs also assert that there are discovery disputes 8 extant. (Id. at 10-13). 9 The Scheduling Order in this case, issued on May 30, 2017, provided 10 that all class certification discovery was required to be completed no later 11 than September 5, 2017. (ECF No. 46, ¶ 2). Neither party moved to extend 12 the deadline nor have moved to reopen discovery. This Court does not read 13 the Order denying class certification as reopening discovery. Rather, it only 14 acknowledges that there may be outstanding production issues. It may be 15 worth noting that pursuant to this Court’s Civil Chambers Rules, discovery 16 disputes must be brought before the Court within 30 days of the service of the 17 objectionable response, not the date that impasse is reached. It is unlikely 18 that the Court would consider any discovery disputes raised at this juncture 19 unless it alleges a potential violation of an earlier order regarding discovery. 20 The instant Motion filed ex parte by the Defendant on June 26, 2018, is 21 to prevent the deposition of non-party Frank Clamser from proceeding on 22 June 28, 2018. (ECF No. 115). Defendant alleges that no discovery is 23 authorized at this time and that the notice of the deposition is unreasonable. 24 Defendant also complains that it was not served with a copy of any subpoena 25 served upon Mr. Clamser. 26 27 The Court agrees with Defendant that no new discovery is authorized at this time. On that basis alone, the deposition of Mr. Clamser may not 2 16-cv-1283-JM-MDD 1 2 proceed. Even if discovery was open, the notice of deposition is defective. A party 3 may depose any person upon reasonable written notice to other parties. Fed. 4 R. Civ. P. 30(a)(1). Defendant asserts that the deposition notice of Mr. 5 Clamser was served initially on Defendant on June 25, 2018, with a 6 deposition date of July 2, 2018. (ECF No. 115-1, ¶2). On June 26, 2018, an 7 amended notice of deposition was served upon Defendant moving the 8 deposition of Mr. Clamser to June 28, 2018. (Id., ¶3). The Court finds that 9 the amended notice, providing two-day notice of the deposition, patently is 10 11 unreasonable. A deponent’s attendance may be compelled by subpoena, but is not 12 required. Rule 30(a)(1), Fed. R. Civ. P. Only if a party intends to serve a 13 subpoena requiring the production of documents is a notice and copy of the 14 subpoena required to be served on other parties prior to service upon the 15 person to whom it is directed. Fed. R. Civ. P. 45(a)(4). On the facts 16 presented, the Court cannot determine whether any violation of the rules 17 regarding notice and service of a subpoena duces tecum is present. 18 19 20 21 The Court ORDERS that the deposition of Mr. Clamser be STAYED unless and until new discovery is authorized. IT IS SO ORDERED: Dated: June 27, 2018 22 23 24 25 26 27 3 16-cv-1283-JM-MDD

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?