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