Sanchez Y Martin, S.A. DE C.V. v. Dos Amigos, Inc. et al

Filing 89

ORDER Re Ex Parte Application Requesting a Hearing to Clarify the Scope of Request No. 53 (ECF No. 86 ). The Court denies Defendants' request for a hearing. Signed by Magistrate Judge Linda Lopez on 3/22/2019. (jdt)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

SANCHEZ Y MARTIN, S.A. DE C.V.,

Case No.: 17cv1943-LAB (LL)

Plaintiff,

12
13

v.

14

ORDER RE EX PARTE
APPLICATION REQUESTING A
HEARING TO CLARIFY THE
SCOPE OF REQUEST NO. 53

DOS AMIGOS, INC.;
PABLO PAOLI; and
DOES 1-100,

15
16
17
18
19

(ECF No. 86)
Defendants

_________________________________
AND RELATED COUNTERCLAIMS.

20
21

On March 19, 2019, Defendants filed an ex parte application “for the purpose of

22

seeking an opportunity to be heard before the Court as to the scope of production

23

corresponding to Mr. Paoli’s Amended Response to Request for Production No. 53”

24

(“ex parte application”). ECF No. 86 at 2. Also on March 19, 2019, Plaintiff filed an

25

objection to the ex parte application asking the Court to reject it as an improper attempt to

26

relitigate matters already decided by the Court and for failure to comply with filing

27

requirements for ex parte applications pursuant to Chambers Rules of the undersigned

28

Magistrate Judge and Civil Local Rules. ECF No. 88. The Court takes note of the objection
1
17cv1943-LAB (LL)

1

but finds it appropriate to issue the instant order to facilitate discovery because the deadline

2

for completion of fact discovery was February 7, 2019. See ECF No. 51 at 2.

3

As a preliminary matter, the Court notes that the substantive issues regarding

4

Request for Production (“RFP”) No. 53 were briefed by the parties in a discovery motion

5

and ruled on by this Court in an order issued on February 13, 2019. See ECF No. 78

6

at 17-18. RFP No. 53 was propounded by Plaintiff and requests the following: “Electronic

7

copy of DOS AMIGOS’ accounting program (e.g., not limited Peachtree, Sage 50

8

Accounting, QuickBooks, etc.) for the years ended December 31, 2005 through

9

December 31, 2017, and through the most current period.” ECF No. 62-2 at 13. On January

10

17, 2019, counsel for both Plaintiff and Defendants held a conference call with chambers

11

staff to describe discovery issues, including RFP No. 53, as required by Chambers Rules.1

12

Following the call, the Court issued a briefing schedule for Plaintiff’s Motion to Compel.

13

ECF No. 61. Plaintiff filed its Motion to Compel on January 24, 2019, which included the

14

following: “RFP No. 53 calls for an electronic copy of Dos Amigos’ accounting program.

15

Alternatively, [Plaintiff] has agreed to accept files from Dos Amigos’ accounting program

16

in native format with all original metadata intact.” ECF No. 64 at 20. In Defendant Paoli’s

17

opposition to the motion to compel, he argued that the RFPs, including RFP No. 53, were

18

untimely. ECF No. 69 at 2-6. Defendant Paoli added one additional sentence regarding

19

RFP No. 53, stating that the request was an abuse of discovery and was not produced.

20

Id. at 6. After consideration of the parties’ briefing documents and the record, the Court

21

issued an order granting Plaintiff’s Motion to Compel RFP No. 53, stating the following:

22

“Paoli must produce the electronic copy of the accounting program, or native files with

23

original metadata intact, for the requested time period.” ECF No. 78 at 17-18, 22. The Court

24
25
26
27
28

1

The Court finds certain representations made by Defendants concerning conference calls with chambers
staff to be inaccurate. Regarding the briefing schedule that issued following the January 17, 2019
conference call, Defendants incorrectly state that the “Law Clerk declined to modify the briefing dates”
to accommodate Defendants’ suggested briefing dates for Plaintiff’s Motion to Compel. ECF No. 86 at 3.
The undersigned Magistrate Judge issued the briefing schedule, not the law clerk.
2
17cv1943-LAB (LL)

1

further specified that “[a]ll additional documents and ESI must be produced in a rolling

2

production with the first production due on or before February 19, 2018, and a final

3

production due on or before February 25, 2019.” Id. at 23.

4

Since the order granting Plaintiff’s Motion to Compel production of various

5

discovery requests—including RFP No. 53—was issued, RFP No. 53 has been discussed

6

in two additional discovery dispute conference calls with chambers staff. On

7

March 7, 2019, the parties informed chambers that RFP No. 53 had not yet been produced.

8

Instead, Defendants had served an amended response to RFP No. 53 on February 25, 2019

9

stating in part, “Responding Party will provide relevant native files that do not include

10

privileged information (nor third-party confidential information) using technical means

11

agreed upon by counsel and at a time and place agreed upon by counsel.” See ECF No. 86

12

at 4. Defendants claimed that they were having technical difficulties in filtering out

13

privileged information from the accounting records. Defense counsel also asked if the

14

Court requires RFP No. 53 to include irrelevant documents and privileged documents. The

15

Court disagrees with defense counsel’s recollection that “both of these inquiries were

16

responded to in the negative by the Law Clerk.”2 Id. at 5. The law clerk referred defense

17

counsel to the order granting Plaintiff’s Motion to Compel RFP No. 53. RFP No. 53 was

18

also the subject of a discovery dispute conference call with chambers on March 20, 2019.

19

Plaintiff requested the Court issue an Order to Show Cause why Defendant Paoli should

20

not be held in contempt for failing to comply with the Court’s February 13, 2019 order,

21

and why Defendants should not be sanctioned for failing to comply. Defendants stated that

22

they required the Court’s clarification on RFP No. 53 and so had filed the instant ex parte

23

application.

24
25
26
27
28

2

The Court also disagrees with additional representations by defense counsel concerning the
March 7, 2019 conference call with chambers. Contrary to defense counsel’s claims, the law clerk did not
state that the clerk or the undersigned Magistrate Judge would call the parties back. The clerk clearly
stated that the Court would either call the parties in a conference call, issue a briefing schedule, or issue
an order. The Court subsequently issued a briefing schedule on March 11, 2019. ECF No. 83.
3
17cv1943-LAB (LL)

1

The Court finds that rather than seeking clarification regarding the order granting

2

the motion to compel RFP No. 53, Defendants are effectively asking for a motion for

3

reconsideration. See Kilbourne v. Coca-Cola Co., No. 14cv984-MMA (BGS), 2015 WL

4

10943610, at *2 (S.D. Cal. Sept. 11, 2015) (“A timely filed motion for reconsideration

5

under a local rule is a motion to alter or amend a judgment under Fed. R. Civ. P. 59(e).”

6

(citing Bestran Corp. v. Eagle Comtronics, Inc., 720 F.2d 1019, 1019 (9th Cir. 1983))); see

7

also CivLR 7.1.i.1. (permitting application for reconsideration). Defendants’ ex parte

8

application argues that RFP No. 53 is “materially irrelevant, privileged, and not

9

proportional to the needs of this case.” ECF No. 86 at 9. Defendants had an opportunity to

10

make these arguments in its opposition to Plaintiff’s Motion to Compel but chose to make

11

a different argument. See ECF No. 69 at 2-6. The arguments presented in the instant

12

application were known to Defendants at the time of the filing of the Motion to Compel.

13

The Court declines to relitigate the motion to compel RFP No. 53. See Kona Enterprises,

14

Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (“A Rule 59(e) motion [for

15

reconsideration] may not be used to raise arguments or present evidence for the first time

16

when they could reasonably have been raised earlier in the litigation.”); Kilbourne v. Coca-

17

Cola Co., No. 14cv984-MMA (BGS), 2015 WL 10943610, at *2 (S.D. Cal. Sept. 11, 2015)

18

(“Further, it is well-settled that Rule 59 is not a vehicle for relitigating old issues, presenting

19

the case under new theories, securing a rehearing on the merits, or otherwise taking a

20

‘second bite at the apple.’” (internal quotation marks and citation omitted)). To the extent

21

that this ex parte application is a motion for reconsideration of the order granting the motion

22

to compel RFP No. 53, the Court denies it.

23

Regarding clarification, the Court finds that its February 13, 2019 order granting

24

Plaintiff’s Motion to Compel plainly states that Defendant Paoli must produce the

25

electronic copy of the accounting program, or native files with original metadata intact, for

26

the requested time period, no later than February 25, 2019. ECF No. 78 at 17-18, 22. To

27

the extent there are attorney-client privileged documents in the accounting records, they

28

are to be treated according to the Federal Rules of Civil Procedure. To the extent there are
4
17cv1943-LAB (LL)

1

other issues of confidentiality, the parties’ stipulated protective order provides for the

2

designation of materials as “confidential” or “confidential – for counsel only.”

3

ECF No. 36. Thus, Defendant must produce a copy of the entire accounting program, or

4

native files with original metadata intact, for the requested time period, with the exception

5

of attorney-client privileged materials. The Court notes that Defendant Paoli is twenty-five

6

days past the deadline for production of RFP No. 53, and subsequently ORDERS

7

Defendant to produce RFP No. 53 to Plaintiff on or before March 26, 2019. The Court

8

DENIES Defendants’ request for a hearing.

9
10

IT IS SO ORDERED.
Dated: March 22, 2019

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
17cv1943-LAB (LL)