Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Filing 260

MOTION for Protective Order by Connexus Corporation, Firstlook, Incorporated, Navigation Catalyst Systems, Incorporated. (Delgado, William)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

THE WEATHER UNDERGROUND, INC.,
a Michigan corporation,
Plaintiff,
vs.

Case No. 2:09-CV-10756
Hon. Marianne O. Battani

NAVIGATION CATALYST SYSTEMS, INC.,
a Delaware corporation; CONNEXUS CORP.,
a Delaware corporation; FIRSTLOOK, INC.,
a Delaware corporation; and EPIC MEDIA
GROUP, INC., a Delaware corporation,
Defendants.
______________________________________________________________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
Anthony P. Patti (P43729)
BUTZEL LONG, P.C.
HOOPER HATHAWAY, PC
150 West Jefferson, Suite 100
126 South Main Street
Detroit, MI 48226
Ann Arbor, MI 48104
[phone]
734-662-4426
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Local Counsel for Defendants
______________________________________________________________________

DEFENDANTS CONNEXUS CORPORATION, FIRSTLOOK, INC., AND
NAVIGATION CATALYST SYSTEMS, INC.’S MOTION FOR PROTECTIVE ORDER

NOTICE OF MOTION AND MOTION
TO THIS HONORABLE COURT, PLAINTIFF, AND ITS ATTORNEYS OF RECORD:
Connexus, Inc., Firstlook, Inc., and Navigation Catalyst Systems, Inc. (collectively the
“Defendants”) hereby move this court for a protective order quashing the subpoena to Seth
Jacoby issued by Plaintiff on February 21, 2012 and asking that a second deposition of Seth
Jacoby be prohibited.
The bases for this Motion are set forth in the Memorandum of Points and Authorities; to
wit, that Plaintiff failed to obtain leave of this Court as required by the Federal Rules of Civil
Procedure before issuing the subpoena and that any request for such leave should be denied as
untimely and prejudicial to Defendants’ ability to prepare for trial.
On February 26, 2012, Defendants informed Plaintiff’s counsel of this motion by e-mail
and the basis for this motion. Defendants did not obtain Plaintiff’s concurrence for the relief
requested.
RESPECTFULLY SUBMITTED this 27th day of February, 2012 (Pacific Time).
/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

ii

STATEMENT OF THE ISSUE PRESENTED
Whether the Court should issue an order to protect Defendants from a second deposition
of Seth Jacoby, on the eve of trial, for which Plaintiff did not seek leave of Court? Defendants
respectfully submit that the answer is “Yes.”

iii

CONTROLLING AUTHORITY
Fed. R. Civ. P. 26(c) provides that “[t]he court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following: (A) forbidding the disclosure or discovery.”
Fed. R. Civ. P. 30(a)(2) requires a party obtain leave of Court to depose a deponent more
than once.

iv

MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION
In an adversarial judicial system, the rules of that system ensure fairness. When a party

fails to abide by those rules, the resulting prejudice to its opponent is significant. That is
particularly true as the parties approach trial.
Here, it is the eve of trial, and Plaintiff is not following the rules. Plaintiff intends to
proceed with the second deposition of a witness named Seth Jacoby, but Plaintiff did not seek
leave of Court for a second deposition as required by Fed. R. Civ. P. 30(a)(2).
Notably, Plaintiff could have followed the rules; it simply chose not to. The activity in
this case since September 2011 (at which time the case was set for trial in March 2012) has been
de minimis. At any point in time since September 2011, Plaintiff could have sought leave for a
second deposition. Had Plaintiff obtained such leave, the deposition could have proceeded on a
date and at a time that was mutually convenient for the parties and the witness. Most
importantly, it would have taken place weeks if not months prior to the trial date. Nevertheless,
Plaintiff chose to wait until February 21, 2012 to unilaterally issue the subpoena to Mr. Jacoby,
without the required leave of Court. Plaintiff unilaterally set the deposition for March 1, 2012 in
New York City, a scant 11 days prior to trial, without consulting Defendants on the date and
time.
This Court should protect Defendants from what is an obvious and unreasonable burden.
Plaintiff never sought leave as required. And, even if it does so now, leave should be denied.
Mr. Jacoby was already deposed for seven hours on the same topics rendering a second
deposition a duplicative and unnecessary exercise. Most importantly, though, this unnecessary

exercise would be taking place literally days before trial, depriving Defendants of crucial time
necessary to prepare for a trial in which Plaintiff will be seeking upwards of $27 million.
II.

STATEMENT OF FACTS
This case was filed in the Eastern District of Michigan in February 2009. Plaintiff

deposed Seth Jacoby, the former president of Firstlook, for a full day in September 2010 in New
York City where he resided and worked at the time. Declaration of William A. Delgado, dated
February 27, 2012, at ¶ 2. Discovery closed in December 10, 2010. Order, Docket No. 118.1
In September 2011, this case was set for trial in March 2012. Order, Docket No. 223.
With the exception of a motion for reconsideration related to Plaintiff’s witness, Chris
Schwerzler, there has been no motion practice or discovery in this matter since September 2011.
Delgado Decl. at ¶ 3. These facts lead to several inescapable conclusions:
1.

Having filed its lawsuit in this venue, Plaintiff has known since the inception of
this case the subpoena power of this Court would not extend to witnesses in other
states.

2.

Therefore, when Plaintiff took the video-taped deposition of Mr. Jacoby in
September 2010, it knew that it lacked the power to compel Mr. Jacoby’s
deposition at trial. Unsurprisingly (and likely cognizant of that fact), Plaintiff
interrogated Mr. Jacoby at length for a full day as permitted by the Federal Rules.
Plaintiff can use the videotape of that deposition at trial as it sees fit.

1

Additional discovery on the issue of The Epic Media Group’s acquisition of Connexus was
permitted between January-June, 2011 (see Docket Entry on 4/8/2011). That discovery is
irrelevant to the issue discussed herein.
2

3.

If it believed that the September 2010 deposition was insufficient, Plaintiff had
since September 2010 to seek leave to depose Mr. Jacoby a second time either to
obtain further discovery or for purposes of trial. It never did so.2

4.

Since September 2011, the parties have had months where the activity in this case
has been de minimis, leaving plenty of time for a second deposition of Mr.
Jacoby. At no point in time did Plaintiff seek leave of Court to depose Mr.
Jaboby a second time.

In fact, Plaintiff did not broach the subject of trial witnesses until November 11, 2011.
Delgado Decl. Ex. B. On November 29, 2011, Defendants informed Plaintiff that various
witnesses were no longer employed by Defendants; that Mr. Jacoby would not be appearing at
trial in this matter; that Plaintiff should plan on proceeding with the testimony from his
deposition. Delgado Decl. Ex. C. Notably, Plaintiff did not immediately seek leave of this
Court for a second deposition (presumably, on the basis that the first deposition was insufficient
for purposes of trial). In fact, Plaintiff did not respond to Defendants’ letter at all for weeks.
Plaintiff’s next communication did not arrive until February 3, 2012, at which time
Plaintiff noted that it intended to proceed with a de bene esse deposition of Mr. Jacoby. Delgado
Decl. Ex. D. Plaintiff’s February 3, 2012 letter is particularly telling because it requests
Defendant to reply “no later than December 12, 2011.” Obviously, the letter was written before
December 12, 2011 (at which time the parties were still months away from trial), but Plaintiff

2

Clearly, Plaintiff did not believe that a second deposition of Mr. Jacoby was necessary in
July 2011 because Plaintiff brought a Motion for Partial Summary Judgment based on the
evidence as it is existed at that point in time. In support of that Motion, Plaintiff relied on the
Jacoby deposition transcript from September 2010. See Docket No. 189, Ex. J. Plaintiff did
not suggest that a second deposition would be necessary.
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delayed in sending it until the beginning of February. So, clearly, Plaintiff recognized that
various pretrial issues needed to be resolved as early as possible but nevertheless made the
conscious decision to delay in raising these issues until a month before trial.
On February 7, 2012, Defendants responded by noting that Plaintiff had not sought leave
to depose Mr. Jaboby a second time and that, given the imminent nature of trial, Defendants
would oppose such a motion at this juncture. Delgado Decl. Ex. E. Plaintiff did not respond to
that letter and did not seek leave of Court.
Instead, Plaintiff unilaterally issued and served a subpoena from the Southern District of
New York to Mr. Jacoby, ordering him to appear for deposition on March 1, 2012 in New York
City. Delgado Decl. Ex. A.
III.

ARGUMENT
A.

Plaintiff Failed to Obtain Leave of Court to Issue a Subpoena to Seth Jacoby
Which Would Require His Attendance at a Second Deposition.

Fed. R. Civ. P. 30(a)(2)(A)(ii) states that a party “must” obtain leave of court for a
deposition if “the deponent has already been deposed in the case.” Mr. Jacoby was deposed in
September 2010. Therefore, Plaintiff had to obtain leave of Court to depose Mr. Jacoby a second
time but failed to obtain such leave. Landis v. Galarneau, 2010 WL 446445 *3 (E.D. Mich.
January 28, 2010) (“The Court does, however, note than any deposition of McCarthy would
require the defendant to apply for an order of the Court permitting such a deposition because
McCarthy has already been deposed in this matter. See Fed. R. Civ. P. 30(a)(2)(A)(ii).”).

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Given the straightforward nature of the rule and its application here, there is not much
more to say. The subpoena must be quashed in light of Plaintiff’s failure to obtain leave of Court
for a second deposition.
B.

Leave of Court Should Not Be Granted Now.

In opposition to this motion, Plaintiff is likely to request leave of Court for conducting
Mr. Jacoby’s deposition and an ex post facto approval of the subpoena already issued so that the
deposition can proceed on March 1, 2012. Both requests should be denied.
First, Plaintiff has never made any showing as to why Mr. Jacoby’s second deposition is
needed at all. Mr. Jacoby was already deposed, on video tape, for a full day in New York City.
Delgado Decl. at ¶ 2. Neither Plaintiff’s claims and theories nor Defendants’ defenses and
theories have changed since then. This has always been a case under the ACPA, and it continues
to be such a case today. In fact, in July 2011, Plaintiff submitted the Jacoby deposition transcript
into evidence in support of its Motion for Partial Summary Judgment, proof-positive that the
Plaintiff believes it already has testimony from Mr. Jacoby that is relevant, admissible, and
(presumably) supportive of its case. Correspondingly, Plaintiff cannot show this second
deposition would be anything other than a duplicative exercise intended merely to distract
Defendants from preparing for trial. Blackwell v. City & County of San Francisco, 2010 WL
2608330 * 2 (N.D. Cal. June 25, 2010) (“[S]econd depositions have been allowed where there is
new evidence since the first deposition or new theories added to the complaint. [Citations].
Here, it is clear that Plaintiff had an opportunity to obtain the information now sought through
the first deposition.”).

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Second, Plaintiff cannot justify its lack of diligence in seeking this second deposition
earlier. Plaintiff has had since September 2010 to ask this Court for a second deposition.
Assuming, arguendo, that it wanted to wait until a firm trial date had been set before seeking a
second deposition, it still had since September 2011 to ask for a second deposition.
Perhaps Plaintiff simply assumed that Mr. Jacoby would appear at trial and that such a
request was unnecessary. Putting aside that “incorrect assumptions regarding trial strategy” do
not constitute good cause, Plaintiff was aware since November 2011 that Mr. Jacoby was not
going to appear for trial. Delgado Decl. Ex. E. Plaintiff had all of December 2011, all of
January 2012, and all of February 2012 to seek leave for a second deposition and, if leave had
been obtained, to proceed with that deposition sufficiently in advance of trial on a date that was
mutually convenient for all parties and the witness.
Notably, Plaintiff agrees with Defendants that it needed to act more diligently because its
February 3, 2012 letter was clearly written in early December 2011. Instead of sending that
letter in December 2011, though, Plaintiff waited until February 3, 2012 to send it and then
waited until February 21, 2012 to issue a subpoena to Mr. Jacoby. That subpoena commands his
attendance at a deposition on Plaintiff’s unilaterally selected date of March 1, 2012, literally days
before trial in this matter. Delgado Decl. Ex. A. The unfairness to Defendants’ counsel and the
burden on Defendants’ counsel to prepare for and attend such a deposition is significant.
Consider Defendants’ counsel’s recent schedule as it relates to this case only (i.e., putting
aside all of his other cases, including three class actions, and any of his administrative
responsibilities as a partner at his law firm, which include overseeing a major hardware and
software upgrade of his firm’s computer system taking place the weekend of February 24-26):

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

February 20-24, 2012: finalize and file Defendants’ motions in limine; prepare
and file responses to Plaintiff’s first two motions in limine; work with Plaintiff’s
counsel to prepare final pretrial order; finalize all trial exhibits; work with
Plaintiff’s counsel to finalize and assemble Bench Book for pretrial conference,
including drafting Administrative Section, Theory of the Case, Defendants’
Proposed Jury Instructions, Defendants’ Verdict Form, Exhibit List, and Witness
List and incorporating all of its Plaintiff’s respective portions;



Weekend of February 25th and 26th: prepare this motion; prepare responses to
Plaintiff’s second two motions in limine.



February 27th: spend day flying to Detroit for pretrial conference.



February 28th: prepare for and attend pretrial conference; fly back to Los
Angeles.

Delgado Decl. at ¶ 9.
Plaintiff’s unilaterally selected deposition date of March 1, 2012 would, essentially,
require Defendants’ counsel to arrive in Los Angeles on February 28th, turn around and fly to
NYC on February 29th, and attend the deposition on March 1, 2012…but without any
opportunity whatsoever to prepare for that deposition. And, of course, there would be the
exorbitant cost of last-minute airfare and a hotel room in New York City. Most importantly,
Defendants would be prohibited from start preparing its trial preparation until March 2, 2012, at
the earliest. Graebner v. James River Corp., 130 F.R.D. 440, 441 (N.D. Cal. 1989) (denying
second deposition of Plaintiff because “[w]ith trial less than two months away, it would be
unjust to require Graebner to set aside her own pre-trial preparation to accommodate James

7

River.”) (emphasis added). Here, any request for leave would be even more egregious than in
Graebner since the parties are days—not months—away from trial.
Indeed, the Jacoby deposition would deprive Defendants of a full three days of trial
preparation (1 day to prepare for the deposition, 1 day for Defendants’ counsel to travel from Los
Angeles to New York, and 1 day to attend the deposition and fly back to Los Angeles). Delgado
Decl. at ¶ 10. Put differently, there are eight business days between the pretrial conference on
February 28th and the start of trial on March 12th. Plaintiff’s eleventh hour request threatens to
deprive Defendants of nearly half of its trial preparation time.
C.

Plaintiff’s Tardy Subpoena May Be Quashed Anyway.

Plaintiff’s eleventh hour subpoena faces a different hurdle: it is issued to a third party
resident of New York City who has his own set of rights and can interpose his own objections
through a motion to quash in the Southern District of New York. If that happens, and even
assuming (i) there is a process in the S.D.N.Y. to expedite a hearing on the motion and (ii) the
subpoena is not quashed, then the Jacoby deposition will either take place the week before trial
or during trial itself. The burden on Defendants’ trial preparation and trial practice would be
significant.
IV.

CONCLUSION
Plaintiff did not seek leave of Court as required before issuing a subpoena to Seth Jacoby

commanding his attendance at a second deposition, scheduled 11 days before trial. Even if
Plaintiff now seeks that leave, the burden and prejudice to Defendants’ trial preparation would be
too significant for such leave to be granted. On the other hand, the prejudice to Plaintiff—who
has already deposed Mr. Jacoby for seven hours and has that deposition testimony on

8

videotape—is non-existent. Plaintiff has already relied on existing testimony in support of its
Motion for Partial Summary Judgment and can rely on that same testimony at trial (subject, of
course, to evidentiary objections).
RESPECTFULLY SUBMITTED this 27th day of February, 2012 (Pacific time).
/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on February 27, 2012, Pacific Time, I electronically filed the
foregoing paper with the Court using the ECF system which will send notification of
such filing to the following:
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
BUTZEL LONG, P.C.
150 West Jefferson, Suite 100
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]
Local Counsel for Defendants

Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

10