Garfield Beach CVS LLC v. Palm Care Pharmacy et al

Filing 21

ORDER Granting in Part and Denying in Part 3 Plaintiffs' Motion to Expedite Discovery and for a Preservation Order. Plaintiff's motion for a preservation order is granted. Plaintiff's motion for expedited discovery is denied. Signed by Magistrate Judge Mitchell D. Dembin on 5/24/2017. (dls)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GARFIELD BEACH CVS LLC, Plaintiff, 12 13 v. 14 MOLLISON PHARMACY and SAMERA YOKOUB, 15 Defendants. 16 Case No.: 17-cv-0879-AJB-MDD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO EXPEDITE DISCOVERY AND FOR A PRESERVATION ORDER [ECF NO. 3] 17 In April 2017, CVS purchased El Cajon Express Pharmacy. (ECF No. 1 18 19 ¶ 3). Defendant Yokoub was a delivery driver for Express. (Id. ¶ 15). This 20 case stems from allegations by CVS that Yokoub misappropriated customer 21 lists, derived from her delivery logs, that Defendant Mollison Pharmacy has 22 used to lure customers from CVS.1 (Id. ¶¶ 37, 38, 40). On March 2, 2017, Plaintiff filed the instant motion seeking a 23 24 temporary restraining order, a preservation order, and an order authorizing 25 26 27 Plaintiff, in its Complaint, also sued Palm Care Pharmacy but voluntarily dismissed Palm Care Pharmacy on May 10, 2017. (ECF No. 14). 1 1 17-cv-0879-AJB-MDD 1 expedited discovery. (ECF No. 3). The motions for a preservation order and 2 for expedited discovery were referred to this Court by the district judge. 3 Defendants responded in opposition on May 15, 2017. (ECF No. 17). Plaintiff 4 replied on May 17, 2017. (ECF No. 18). As provided herein, Plaintiff’s motion for a preservation order is 5 6 GRANTED. Plaintiff’s motion for expedited discovery is DENIED. DISCUSSION 7 8 A. Motion for Preservation Order 9 In considering a motion for an order preserving evidence, the court is to 10 consider: 1) The level of concern the court has for the continuing existence and maintenance of the integrity of the evidence in question in the absence of an order directing preservation of the evidence; 2) Any irreparable harm likely to result to the party seeking the preservation of the evidence absent an order directing preservation; and 3) The capability of an individual, entity, or party to maintain the evidence sought to be preserved. 11 12 13 14 15 16 17 Jardin v. Datallegro, Inc., et al, No. 08-cv-1462, 2008 WL 4104473 *1 18 (September 3, 2008, S.D. Cal.) (citations omitted). Although asserting that the facts in support of the motion presented by 19 20 Plaintiff are not accurate, Defendants state that they “do not generally 21 object” to the Court issuing a preservation order. (ECF No. 17 at 2). 22 Although it is not quite clear what the lack of general objection means, the 23 Court takes it that Defendants do not oppose. It is not for the Court to 24 second guess that decision. Accordingly, Plaintiff’s motion for a preservation 25 order is GRANTED as requested by Plaintiff. (See ECF No. 3-1 at 18-192). 26 27 2 The Court will refer to ECF-generated pagination instead of original pagination herein. 2 17-cv-0879-AJB-MDD 1 B. Motion for Expedited Discovery 2 Federal Rule of Civil Procedure 26(d) states: 3 5 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. 6 In the instant case, Plaintiff may only obtain early discovery by court 4 7 order. In this Circuit, courts must find “good cause” to determine whether to 8 permit discovery prior to the Rule 26(f) conference. Good cause exists where 9 the need for expedited discovery, in consideration of the administration of 10 justice, outweighs the prejudice to the responding party. See, e.g., Arista 11 Records, LLC v. Does 1–43, 2007 WL 4538697 *1 (S.D. Cal. 2007). 12 Plaintiff asserts that expedited discovery is necessary to determine the 13 extent to which Defendants have disclosed CVS’ trade secrets and 14 confidential information. (ECF No. 3-1 at 19). In support, Plaintiff claims 15 that a number of customers have moved their business from Express to 16 Mollison following the purchase and claims that this is likely a consequence 17 of Defendant Yokoub taking the delivery log and Defendant Mollison 18 Pharmacy using it to contact and divert customers. Defendants, on the other 19 hand, assert that the delivery log, which was returned on April 13, 2017, to 20 Plaintiff, does not contain the customers printed name, address or telephone 21 number and was not used or copied by Defendants. Declaration of Samera 22 Yokoub ¶¶ 9, 10 (ECF No. 15-9). 23 The Court finds that good cause is lacking for expedited discovery. The 24 Court finds that Plaintiff has failed to demonstrate that the need for 25 expedited discovery outweighs the prejudice to Defendants in having to 26 respond to discovery at this stage of the case. The motion for expedited 27 3 17-cv-0879-AJB-MDD 1 discovery is DENIED. The Court declines to enter a protective order as suggested by Plaintiff 2 3 at this time. The Court encourages the parties, at the appropriate time, to 4 meet and confer for the purpose of presenting a stipulated protective order. 5 In the event of a dispute over the terms, the Court will entertain a joint 6 motion to resolve any issues. CONCLUSION 7 For the foregoing reasons, Plaintiffs’ Motion for a Preservation Order is 8 9 GRANTED. Plaintiff’s Motion for Expedited Discovery is DENIED. 10 Defendants are ORDERED to: 11 (1) Preserve all copies of CVS’ confidential and proprietary business 12 information, including but not limited to, Delivery Logs, list, or records and 13 all copies; (2) Preserve any communication(s) related to the use of CVS’ 14 15 confidential and proprietary business information; and (3) Preserve any communications related to Mollison and/or Palm 16 17 communicating with Yokoub about hiring her or paying her for any of CVS’ 18 confidential, trade secret or proprietary information, including the Delivery 19 Logs. 20 21 IT IS SO ORDERED: Dated: May 24, 2017 22 23 24 25 26 27 4 17-cv-0879-AJB-MDD

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