Federal Trade Commission et al v. Dalbey et al

Filing 161

MINUTE ORDER denying without prejudice 159 Motion for Protective Order. No Party or Third Party shall file a contested discovery motion until after complying with the steps for following the Magistrate Judge's discovery dispute procedure, by Magistrate Judge Kristen L. Mix on 3/5/12.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01396-RBJ-KLM
FEDERAL TRADE COMMISSION and
STATE OF COLORADO, ex rel. JOHN W. SUTHERS, ATTORNEY GENERAL,
Plaintiffs,
v.
RUSSELL T. DALBEY,
DEI, LLLP,
DALBEY EDUCATION INSTITUTE, LLC,
IPME, LLLP,
CATHERINE L. DALBEY, and
MARSHA KELLOGG,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Motion for Protective Order of Third-Party
Shoemaker Ghiselli + Schwartz, LLC to Plaintiff Federal Trade Commission’s
Subpoena to Produce Documents, Information, or Objects or to Permit Inspection
of Premises [Docket No. 159; Filed March 2, 2012] (the “Motion”), filed by Third Party
Shoemaker Ghiselli + Schwartz, LLC (“SGS”).
Pursuant to the Order Setting Scheduling/Planning Conference [#24], the Motion is
premature. The Order Setting Scheduling/Planning Conference [#24] provides as follows:
No opposed discovery motions are to be filed with the Court until the parties
comply with D.C.COLO.LCivR 7.1A. If the parties are unable to reach
agreement on a discovery issue after conferring, they shall arrange a
conference call with Magistrate Judge Mix to attempt to resolve the issue.
Both of these steps must be completed before any contested discovery
motions are filed with the Court.
Order Setting Scheduling/Planning Conference [#24] at 2 § E.1 (emphasis added).

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Third Party SGS has not arranged a conference call to attempt to resolve the instant
discovery dispute. Accordingly,
IT IS HEREBY ORDERED that the Motion is DENIED without prejudice.
IT IS FURTHER ORDERED that no Party or Third Party shall file a contested
discovery motion until after complying with the steps for following the Magistrate Judge’s
discovery dispute procedure, as stated below:
Step 1: Counsel meaningfully confer regarding one or more discovery disputes
pursuant to Local Rule 7.1A. Counsel may choose to confer about only one dispute
at a time or several disputes at once. This decision is up to counsel, not the Court.
Step 2: If discovery disputes are not resolved, counsel then agree on a mutually
convenient time to call the Court at [phone] for a discovery hearing
regarding all disputes about which they have fully conferred but failed to reach
agreement.
No attorney can insist on contacting the Court for a discovery hearing at a time
when another attorney is not available. If an attorney is not available for a
conference call to the Court for a discovery hearing when contacted by opposing
counsel, s/he must provide opposing counsel with alternate dates and times to
contact the Court. This eliminates the possibility that one party will have an unfair
advantage over another in preparation for a discovery hearing.
The Court is not responsible for assuring that multiple counsel for the same party
are on the line for a telephone hearing. The Court requires only one attorney of
record on the line for each party involved in the dispute. If counsel for a party want
co-counsel for the same party to participate in the telephone hearing, they are
responsible for ensuring that co-counsel are available to participate on the date and
time chosen by them for the hearing.
The Court will not continue hearings based on the sudden unavailability of
co-counsel for a party. As long as each party involved in the dispute is represented
by at least one attorney of record, the hearing will proceed.
Step 3: When counsel call the Court for the discovery hearing, the judge’s law clerks
will ask counsel questions relating to the nature of the dispute. The law clerks will
consult with the judge as necessary. If the judge determines that any documents are
required for review prior to the hearing, counsel will be instructed to email such
documents to the Court’s chambers, and the hearing will be set at a mutually
convenient date and time in the future.
Step 4: If no documents are necessary for review and the judge is immediately
available, the call will be transferred to the courtroom and the hearing will be
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conducted. If the judge determines that the matter is complex and briefing is
required, the judge will set a briefing schedule. If the judge is not immediately
available, the hearing will be set at a mutually convenient date and time in the future.
Dated: March 5, 2012

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