IPS Group, Inc. v. Civicsmart, Inc. et al

Filing 59

ORDER Denying Plaintiff's Motion for Expedited Discovery [ECF No. 44 ]. Signed by Magistrate Judge Mitchell D. Dembin on 7/27/2017. (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17cv632-CAB-MDD

IPS GROUP, INC.,
Plaintiff,

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v.

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CIVICSMART, INC., et al.,

ORDER DENYING PLAINTIFF’S
MOTION FOR EXPEDITED
DISCOVERY

Defendants. [ECF NO. 44]

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In this case, filed on March 29, 2017, Plaintiff alleges Defendants

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infringed Plaintiff’s patents in parking meter devices, and also alleges

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Defendants violated California’s False Advertising Law and Unfair

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Competition Law and the federal Lanham Act. (ECF Nos. 1 (Complaint) and

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23 (First Amended Complaint)). Pertinent to this motion, Plaintiff alleges

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Defendants lured prospective customers into buying Defendants’ products

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with false statements that Defendants’ technology does not infringe

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Plaintiff’s patents.

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17cv632-CAB-MDD

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On May 26, 2017, Plaintiff filed a motion for preliminary injunction,

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which is pending before the assigned District Judge. (ECF No. 24). On June

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23, 2017, Defendants filed a motion to dismiss the First Amended Complaint

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(ECF No. 41). On June 30, 2017, Plaintiff filed the instant motion seeking an

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order authorizing limited expedited discovery related to its pending motion

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for preliminary injunction. (ECF No. 44). Plaintiff seeks leave to serve

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interrogatories and document demands, and to take a half-day Rule 30(b)(6)

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deposition concerning Defendants’ statements to prospective customers.

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Defendants responded in opposition on July 14, 2017. (ECF No. 56).

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Federal Rule of Civil Procedure 26(d) states:

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A party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f), except in a
proceeding exempted from initial disclosure under Rule
26(a)(1)(B), or when authorized by these rules, by stipulation, or
by court order.

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In the instant case, Plaintiff needs a court order to obtain early

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discovery. In this Circuit, courts must find “good cause” to determine

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whether to permit discovery prior to the Rule 26(f) conference. Good cause

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exists where the need for expedited discovery, in consideration of the

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administration of justice, outweighs the prejudice to the responding party.

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See, e.g., Arista Records, LLC v. Does 1–43, Case No. 07cv2357-LAB-POR,

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2007 WL 4538697, at *1 (S.D. Cal. Dec. 20, 2007).

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Plaintiff asserts that expedited discovery is necessary to provide

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evidence in support of its motion for a preliminary injunction that

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Defendants falsely represented to potential customers that Defendants’

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technology did not infringe Plaintiff’s patents. Plaintiff asserts it knows such

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evidence exists, because Plaintiff obtained that evidence through discovery in

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another pending court proceeding (Case No. 15cv1526-CAB-MDD). Plaintiff
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17cv632-CAB-MDD

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explains it cannot use the evidence obtained in the other case in support of its

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motion in this case because Defendants designated that evidence as

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confidential under the Protective Order in the other case. Plaintiff contends

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the evidence was improperly designated as confidential in that matter.

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Plaintiff asserts that the burden to Defendants is minimal because they may

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have already collected some of the responsive documents and the discovery

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will inevitably occur in due course in this action.

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Defendants oppose on the grounds that Plaintiff cannot demonstrate

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need for the expedited discovery because briefing on the preliminary

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injunction motion closed on the same day Plaintiff filed this motion.

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Defendants further argue that the assumption that this discovery will

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inevitably occur is no support for expediting this discovery. As for Plaintiff’s

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claim that the evidence has been produced but designated as confidential in

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the other case, Defendants argue that Plaintiff’s proper recourse is to follow

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the Protective Order’s procedures for de-designating the documents as

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confidential in the other case. Defendants assert that the requests are vague

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and overbroad. Defendants further contend that the discovery sought is

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burdensome and the burden is not outweighed by Plaintiff’s purported need.

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The Court finds that good cause is lacking for expedited discovery. The

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Court will not order Defendants to engage in early discovery in this action

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that is duplicative of the discovery that Plaintiff asserts already occurred in

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the other action. Plaintiff has a vehicle for obtaining this evidence that is far

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less burdensome to Defendants than expedited discovery. Rather than

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seeking expedited discovery here, Plaintiff should use the vehicle for de-

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designating the evidence produced confidentially in the other action, or, if

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permitted by the Protective Order in that action, file the evidence under seal

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in this action.
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17cv632-CAB-MDD

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Plaintiff has failed to demonstrate that the need for expedited discovery

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outweighs the prejudice to Defendants in having to respond to discovery at

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this stage of the case. The motion for expedited discovery is DENIED.

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IT IS SO ORDERED.

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Dated: July 27, 2017

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17cv632-CAB-MDD