Federal Trade Commission v. Emerica Media Corporation et al

Filing 267

ORDER granting in part and denying in part 240 Motion for Sanctions and to Compel; denying 242 Motion for Protective Order; granting in part and denying in part 256 Motion to Amend/Correct; denying 257 Motion to Compel. The Final Pretrial Conference and Trial set forMarch 20, 2017, are VACATED and will be reset following the resolution of theFTC's Motion for Summary Judgment. Signed by Judge Dana L. Christensen on 2/3/2017. Copy mailed to Sann. (ASG) (ASG).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

FEDERAL TRADE COMMISSION,

CV 13-03-M-DLC

Plaintiff,
ORDER

vs.
AMERICAN EVOICE, LTD., EMERICA
MEDIA CORPORATION, FONERIGHT,
INC., GLOBAL VOICE MAIL, LTD.,
HEARYOU2, INC., NETWORK
ASSURANCE, INC., SECURATDAT,
INC., TECHMAX SOLUTIONS, INC.,
VOICE MAIL PROFESSIONALS, INC.,
STEVE V. SANN, TERRY D. LANE,
a/k/a TERRYD. SANN, NATHANM.
SANN, ROBERT M. BRAACH,
Defendants.
and
BIBLIOLOGIC, LTD.,
Relief Defendant.

The parties move for various relief. Plaintiff Federal Trade Commission
("FTC") moves the Court to: (1) impose sanctions against Defendant Steven V.

1

Sann ("Sann") and the Corporate Defendants 1 in this case as a result of their
failure to appear for depositions and produce discovery (Doc. 240); (2) compel
Defendant Terry Lane a/k/a Terry Sann ("Lane") to produce outstanding discovery
(Doc. 240); (3) compel Sann to appear for depositions following the production of
the outstanding discovery (Doc. 245); and (3) issue summary judgment in favor of
the FTC and against Sann, Lane, and the Corporate Defendants (Doc. 245).2 In
contrast, Sann moves the Court to: (1) issue a protective order preventing his
deposition (Doc. 242); (2) compel the FTC to produce documents in printed form
rather than in paper (Doc. 257); (3) modify the current Scheduling Order to
continue the time for discovery, and to continue the final pretrial conference and
trial date (Doc. 256); and ( 4) extend the time for Sann and the Corporate
Defendants to respond to the FTC's motions (Doc. 259). As discussed in detail
below, the Court will deny in part and grant in part these motions.

BACKGROUND
For purposes of the motions at bar, the Court will not repeat the full and

1

These Defendants are: American eVoice, Ltd.; Emerica Media Corp.; FoneRight, Inc.;
Global Voice Mail, Ltd.; HearYou2, Inc.; Network Assurance, Inc.; SecuratDat, Inc.; Techmax
Solutions, Inc.; and Voice Mail Professionals, Inc.
2

Sann and the FTC have has filed cross-motion for summary judgment as to Defendants'
claim that they are "common carriers" under the law and, thus, exempt from liability under the
allegations raised in the FTC's Complaint. (See Docs. 232; 236.) As discussed below, the Court
considers these motions fully briefed and will issue a separate Order addressing them.
2

complicated history of this case. Suffice to say this case involves an alleged
scheme by Defendants to defraud consumers by "cramming" their landline
telephone bills with unwanted and unutilized telecommunications services,
including voicemail, digital fax, and call forwarding. Through its Complaint filed
January 8, 2013 (Doc. 1), the FTC alleges that Defendants' alleged scheme
violated section 5(a) of the Federal Trade Commission Act, 15 U.S.C. § 45(a), and
requests injunctive and other equitable relief, including rescission or reformation
of contracts, restitution, the refund of monies paid, and disgorgement of
unlawfully obtained assets.
Sann, who is alleged by the FTC to be the ringleader of this scheme, was
indicted in the United States District Court for the District of Montana on 32
counts of Wire Fraud in violation of 18 U.S.C. § 1343, 2 counts of Money
Laundering violation of 18 U.S.C. § 1957, and 1 count of Conspiracy in violation
of 18 U.S.C. § 371. Sann ultimately pled guilty to 1 count of Wire Fraud and 1
count of Money Laundering, and was sentenced by this Court on July 17, 2015, to
twenty four months on each count to run concurrently. Sann is currently
incarcerated in Taft Correctional Institution ("Taft CI") in Taft, California, and
states that he is scheduled to be released to a "half-way house" in mid-February,
2017.
3

During Sann's criminal proceedings, this matter was stayed. 3 Following
resolution of the criminal matter, the Court lifted the stay and held a preliminary
pretrial scheduling conference on November 12, 2015. During this pretrial
conference, the parties discussed various motions filed on behalf of Defendants
which requested the release of currently restrained assets to be applied towards
attorneys' fees. These assets were frozen pursuant to a stipulated Preliminary
Injunction Order entered by the Court on May 8, 2013 (Doc. 55). Defendants'
counsel stated that if the funds were not released, they would be forced to
withdraw and Defendants would be required to represent themselves pro se
through the entirety of this litigation.
The Court expressed that it understood that denial of the motions for the
release of funds would result in Defendants representing themselves pro se and
decided to set a lengthier discovery and motions period to account for this
possibility. Further, the Court noted that Sann would most likely be released from
prison in spring of 2017 and set a bench trial date of March 20, 2017, to allow him
to appear personally. Following the preliminary pretrial scheduling conference,

3

The Court notes that the stay was intermittently lifted in order to enter various
nondispositive Orders (See e.g. Doc. 89 (Order lifting stay for limited purpose of allowing Sann
to move for the admission of pro hace vice counsel and allowing Sann to move for the transfer of
his assets to Bankruptcy Court)) and an Order lifting the stay for the limited purpose of entering
two stipulated preliminary injunctions (Doc. 54).
4

the Court denied Defendants' motions for the release of funds and allowed counsel
for Defendants to withdrawal from representation. (Doc. 196.)
Despite the measures taken by the Court, it appears that various issues have
arisen concerning the discovery and the motions deadlines. As discussed above,
Sann, as the self-described representative for the Corporate Defendants in this
case, has refused to appear for scheduled depositions and now moves for a
protective Order preventing his deposition. In response to this refusal, the FTC
moves for sanctions against Sann in the form of a Court order directing that certain
facts be taken as true pursuant to Federal Rule of Civil Procedure 37.
Further, Defendant Lane, Sann's wife and apparent agent for Sann, has been
instructed by Sann that she is no longer his agent and has refused to produce
several emails requested for production. The FTC now moves to compel the
production of these emails, and to compel Sann to appear for his deposition
following the production of these emails.
Additionally, Sann moves to extend the discovery deadline in this case and
to extend the time to respond to the FTC' s motions until he is released from prison
and is free to conduct his case. The Court will address these motions below.
I. Discovery Motions

As discussed, the Court set an uncharacteristically long period for discovery
5

due to the potential that Defendants would be representing themselves pro se and
because Sann would be incarcerated. However, despite this long schedule,
problems have arisen. Specifically, Sann has moved for a protective order
preventing his deposition and Lane has refused to produce certain documents
requested by the FTC. The FTC now moves for sanctions, to compel Sann to
appear at his deposition, and to compel production of certain documents.
A. Motion for Sanctions and to Compel Deposition (FTC)
On September 28, 2016, the Court granted the FTC's motion, pursuant to
Federal Rule of Civil Procedure 30(a)(2)(B), to depose Sann in his individual
capacity and as the Rule 30(b)(6) designee of the Corporate Defendants in this
action. 4 (Doc. 231.) This motion was unopposed. As such, the FTC coordinated
with prison officials at Taft CI and arranged for depositions to occur on November
7, 2016. Despite his previous lack of objection, Sann emailed the FTC on
November 1, 2016, stating his intentions to move for a protective order precluding
the depositions of him the Corporate Defendants. Later, on November 4, 2016, a
prison official at Taft CI emailed counsel for the FTC and stated "Inmate Sann has
changed his mind and is declining to participate in the deposition scheduled for

4

The Court notes that Sann has never objected to his designation as the designee for the
Corporate Defendants and refers to himself in emails with the FTC as their "corporate
representative." (Doc. 240-1 at 68.)
6

Monday, November 7, 2016." (Doc. 240-1at66.)
Apparently, Sann believed that he would be able to review the discovery
prior to his deposition in order to prepare. However, the discovery provided by
the FTC is saved to a CD-ROM and, due to restrictions imposed on inmates at Taft
CI, Sann is not allowed to possess or review the disk. Further, due to a lack of
space in inmates' cells, Sann is unable to store the vast majority of the discovery,
which consists of tens of thousands of pages. Because he is unable to review the
discovery and prepare for his deposition, Sann seeks a protective order preventing
his deposition until he is released from prison and can review the discovery.
Consequently, the FTC seeks sanctions against Sann for his alleged refusal to be
deposed.
Federal Rule of Civil Procedure 37(d) states that a court "may, on motion,
order sanctions if a party or a party's officer, director, or managing agent--or a
person designated under Rule 30(b)(6) or 31(a)(4)-fails, after being served with
proper notice, to appear for that person's deposition." Fed. R. Civ. P.
37(d)(l)(A)(i) (internal punctuation omitted). Sanctions for failure to appear
include:
(i) directing that the matters embraced in the order or other designated
facts be taken as established for purposes of the action, as the
prevailing party claims;
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(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters
in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except
an order to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi); (d)(3). The Ninth Circuit construes Rule 37(d)
strictly. Estrada v. Rowland, 69 F.3d 405, 406 (9th Cir. 1995). In Estrada, the
plaintiff, a prisoner acting prose, appeared at his deposition but refused to testify.

Id. at 405. The district court determined that the prisoner had violated Rule 37(d)
and dismissed the action. The Ninth Circuit reversed the district court and
determined that the prisoner had not actually "'fail[ed] to appear' for the purposes
of Rule 37(d)." Id. at 406 (citing R. W. Int'l Corp. v. Welch Foods, Inc., 937 F.2d
11, 15 n. 2 (1st Cir. 1991) ("'failure to appear' for a deposition is strictly construed
and Rule 37(d) sanctions apply only when a deponent literally fails to show up for
a deposition session")). Instead, the Ninth found that the proper remedy was to
order the prisoner to testify under Rule 37(a). Id.
Here, the depositions scheduled for November 7, 2016, were canceled by
the FTC and did not go forward. As such, this is not a case where depositions
were held and Sann did not appear. In fact, after reviewing the emails between
8

Sann and the FTC, it appears that Sann did not expressly state he would not be
deposed. (See Doc. 240-1 at 57--68.) Instead, Sann informed the FTC that he was
seeking a protective order and would assert his Fifth Amendment rights if
deposed. (Doc. 240-1 at 57 ("As I said, you are entitled to take my deposition, but
not to ambush me without preparaton [sic] and expose me to governmental action
directed at taking away my liberties and consititutional [sic] rights."); Doc. 240-1
at 68 ("So, if you want a transcript replete with responses asserting my Fifth
Amendment rights, by all means, file your motion with the court.").) Based upon
these facts, the Court finds that Sann did not expressly violate Rule 3 7(d). As
such, the Court will grant the FTC' s motion to the extent it seeks to compel Sann
to appear for his deposition but will deny the motion as it pertains to sanctions as a
result of Sann's refusal to cooperate. See Fed. R. Civ. P. 37(a).
Nevertheless, the Court understands why the FTC did not go forward with
the scheduled deposition. As noted, the FTC received an email from a prison
official that Sann was not going to participate in the deposition. Based upon this
email, the Court recognizes that if the FTC had actually traveled to Taft CI to
depose Sann the result would have been an exercise in futility.
However, because the Court now compels Sann to appear for his and the
Corporate Defendants' depositions, the Court cautions Sann that failure to appear
9

may result in drastic sanctions, including designating that certain "facts be taken
as established for purposes of the action," or the entry of default judgment. See
Fed. R. Civ. P. 37(b)(2)(a). In granting the motion to compel, the Court will also
deny Sann's motion for a protective order as it concerns his request to delay his
deposition indefinitely. Contrary to Sann's argument, the Court is not aware of
any right under the rules of discovery to postpone a deposition in order to prepare
and Sann fails to cite to such a right.
Further, the Court cautions Sann that refusal to answer the FTC's deposition
questions, without a valid objection grounded in the law, may result in the
imposition of sanctions, including but not limited to the Court drawing an adverse
inference from the non-response. Nationwide Life Ins. Co. v. Richards, 541 F.3d
903, 911 (9th Cir. 2008) ("When a party asserts the privilege against
self-incrimination in a civil case, the district court has discretion to draw an
adverse inference from such assertion.") (citations omitted). As such, the Court
will grant leave to the FTC to file a second motion for sanctions if Sann,
individually or as designee of the Corporate Defendants, either fails to appear for
depositions or refuses to participate.
B. Sanctions for Failure to Produce Documents
Unlike Sann's failure to participate in his and the Corporate Defendants'
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depositions, Defendants Sann and Lane's apparent refusals to produce certain
documents is a more serious issue for the Court. On February 23, 2016, the FTC
served Requests for the Production of Documents ("RFPs") on Sann, Lane, and
the Corporate Defendants. These RFPs requested documents concerning
Defendants' business activities, communications amongst themselves, and
communications between Defendants and third parties "relating to the marketing
or billing of voice mail, electronic fax, or text-to-voice services, or the placement
of charges on consumers' telephone bills ...." (Doc. 240-1at71-75.) After
some back and forth between Sann and the FTC, 5 Sann, through Lane, began to
produce discovery on a rolling basis. This discovery consisted of ten banker's
boxes and one portable hard drive. However, during discussions between the FTC
and Sann regarding the production of discovery, it became apparent that several
emails responsive to the FTC's RFPs had not been produced. These emails were

5

Apparently, after receiving the FTC's FRPs, Defendants Sann, Lane and the Corporate
Defendants issued near-identical responses where they argued that they could not produce the
requested discovery because the documents were not "presently in [their] custody, control, and/or
possession." (Doc. 240-1 at 143 (emphasis in original).) However, Defendants went on to state
that these documents were located at either: ( 1) Sann' s "home" (presumably his Stevensville,
Montana address); (2) Defendant Robert Braach's office; (3) the office of Sann's previous
criminal attorney; or (4) the offices of Sann' s former attorneys in this matter. After the FTC
explained to Defendants that because they had the legal right to obtain the documents, they were
technically in their "control" for purposes of discovery, citing to In re Bankers Trust Co., 61 F .3d
465, 469 (6th Cir. 1995), Lane began to produce the requested discovery on behalf of
Defendants.
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previously hosted by Defendants' third-party email service provider, AppRiver.
However, according to the FTC, Sann had AppRiver create a "backup" of the
emails on a separate hard drive. 6 This hard drive was reportedly retrieved by Lane
from their home in Stevensville, Montana.
Despite Lane's earlier cooperation in producing the requested discovery, it
now appears that Sann longer considers her to be his agent and has apparently
instructed her not to produce the emails. This is despite the fact that Lane has
testified in her deposition and stated in correspondence with the FTC that these
emails are in her possession. (Doc. 240-1 at 203, 215.) To date, the FTC has not
received the AppRiver emails.
Pursuant to Federal Rule of Civil Procedure 26(b), a party may obtain
discovery regarding any nonprivileged matter that is relevant to any party's claim
or defense. Fed. R. Civ. P. 26(b)(l). Relevant information includes any
information reasonably calculated to lead to the discovery of admissible material.
DLJ Mortg. Capital, Inc. v. Lemon Creek Ranch, LLC, WL 12134036, at *3 (D.

Mont. Sept. 3, 2013). Accordingly, "[a] party may serve on any other party a
request within the scope of Rule 26(b )(1) to produce and permit the requesting

6

The FTC notes that Sann stated that he had canceled the AppRiver service a year before
he reported to prison, which was in August of2015. However, Lane later stated in an email to
the FTC that the AppRiver emails were "backed up" on May 9, 2016. (Doc. 240-1at196.)
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party or its representative to inspect [designated documents] in the responding
party's possession, custody, or control. Fed. R. Civ. P. 34(a)(l)(A). "A party is
deemed to have control over documents if he or she has a legal right to obtain
them." Bryant v. Armstrong, 285 F.R.D. 596, 607 (S.D. Cal. 2012) (citing United
States v. Int'! Union ofPetroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir.

1989).
Here, as discussed, the FTC's RFPs sought documents concerning
Defendants' business activities, communications amongst themselves, and
communications between Defendants and third parties "relating to the marketing
or billing of voice mail, electronic fax, or text-to-voice services, or the placement
of charges on consumers' telephone bills .... " (Doc. 240-1at71-75.) After
further communications with Lane, the FTC determined that the AppRiver emails
were within in the scope of the FTC's RFPs. Based upon the above facts, the
Court agrees with the FTC that the AppRiver emails are subject to the FTC's RFPs
and must be produced. Because these emails are not only within Lane's control
and, in fact, are actually in her physical possession, the Court will order Lane to
produce these emails immediately. Failure to immediately produce these emails
may result in the issuance of sanctions against Lane to include, but not limited to,
striking her Answer or the entry of default against her. See Fed. R. Civ. P.

13

37(b)(2)(A)(i)-(vi); (d)(3).
In addition to the request to compel production of these emails, the FTC
also requests sanctions against Sann as a result of his actions in instructing Lane
not to produce the emails. The Court has seriously weighed this option and has
concluded that sanctions against Sann, at this time, will not be issued. Based upon
the record before the Court, it appears that Sann initially cooperated in the
production of discovery by apparently instructing Lane to produce the requested
discovery. Because of this initial show of good-faith, the Court declines to impose
sanctions at this time. However, the Court cautions Sann that failure to abide by
the Rules of Civil Procedure in the future may result in Rule 3 7 sanctions.
Accordingly, the Court will deny the FTC's motion for sanctions without
prejudice.
C. Sann's Motion to Compel

Similar to the FTC's motion to compel, Sann also moves to compel
discovery from the FTC. Sann's motion requests two things: (1) to compel the
FTC to produce its discovery in paper form, as opposed to a CD-ROM; and (2) to
compel additional responses to his interrogatories. The Court will address Sann's
motion in separate parts.

14

i. Form of Discovery

As discussed, the FTC has compiled discovery in response to Sann's request
for production of documents and saved it to a CD-ROM. The documents on this
disk represent more than 30,000 pages of discovery. The FTC has offered to send
this disc to Sann but, due to inmate restrictions at Taft CI, he is not allowed to
possess or review the disk. The FTC has also offered to send the discovery to
Lane instead, but Sann has refused. Confusingly, Sann apparently requests that
the FTC produce the discovery in paper form, even though he cannot store the vast
majority of the discovery in his cell. The FTC reports that the cost of processing,
printing, and shipping the discovery to Sann would cost roughly $4,000.
Additionally, upon shipment, Taft CI would likely either refuse or destroy the
documents. Consequently, because he is not able to personally receive or review
the discovery, Sann argues that the FTC has not produced the documents under
Rule 34. As a remedy, Sann argues that the Court should grant his motion to
reschedule the trial for six months after he is released from prison.
"Under Rule 26(b)(2), courts must weigh the burden or expense of proposed
discovery against its likely benefit, taking into account 'the needs of the case, the
amount in controversy, the parties' resources, the importance of the issues at stake
in the litigation, and the importance of the proposed discovery in resolving the

15

issues."' Green v. Baca, 219 F.R.D. 485, 493 (C.D. Cal. 2003) (citing Fed. R. Civ.

P. 26(b)(2)).
Here, the Court has no trouble concluding that the discovery in this case is
important and vital to resolving the issues raised in the FTC's Complaint.
However, producing the discovery in paper form would be overly expensive and
burdensome to the FTC given the fact it is willing to produce the discovery on
CD-ROM, a common and ordinary way of exchanging information during
litigation. The real problem raised in Sann' s motion, however, is not the FTC' s
manner of production. Rather, it is the fact that Sann is incarcerated. The Court is
aware of and understands the limitations and consequences that prison places on
self-represented litigants, particularly when it comes to discovery. However,
Sann's difficulties are self-imposed. As noted in the FTC's brief, Sann pied guilty
to wire fraud and money laundering knowing full well that this case would be
litigated while he was in prison. Further, Sann alone made the decision to file for
bankruptcy, which lead to his inability to retain counsel because his assets became
part of the bankruptcy estate. The discovery issues in this case are not the result of
the FTC's actions and the Court finds that it has complied with Rule 34 to the
extent it can. Accordingly, the Court will deny Sann' s motion as it pertain to his
request to produce the discovery in paper form.

16

ii. Interrogatories

Sann's motion also challenges the sufficiency of the FTC's response to his
interrogatories. In its response, the FTC objected to several of Sann's requests for
production as "overbroad, unduly burdensome and improper." (Doc. 258-1 at 7.)
Primarily, 7 the FTC argues that Sann's requests are so-called "blockbuster"
contention interrogatories which seek "all facts supporting, negating, or otherwise
relating to" the vast majority of the FTC's substantive allegations in its Complaint.
Basically, the FTC argues that Sann' s interrogatories abuse the discovery process
because they require the FTC "to provide the equivalent of a narrative account of
its entire case, including every evidentiary fact tending to prove or disprove its
allegations, details of testimony of supporting witnesses, and the contents of
supporting documents .... " (Doc. 260 at 21.)
Sann, in response, argues that his interrogatories are appropriate under the
discovery rules because they merely ask for the FTC's opinion or contention
regarding application of the facts to the case. In support, Sann cites to various

7

The FTC also argues that the Court should deny Sann' s motion to compel because his
First Set of Interrogatories exceeds the number of written interrogatories authorized under Rule
32. The FTC contends that each of Sann' s individual interrogatories contain requests which
concern multiple subjects. As such, each interrogatory is actually multiple interrogatories and,
after calculation, amounts to more than 70 discrete subparts. Because, as discussed below, the
Court will deny Sann's motion based upon the FTC's "blockbuster" argument, it declines to
address this argument.
17

cases which have allowed contention interrogatories, such as Wagner v. St. Paul

Fire & Marine Ins. Co., 238 F.R.D. 418 (N.D.W. Va. 2006).
Upon review of Wagner, the Court agrees that it allowed a contention
interrogatory. However, contrary to Sann's argument, Wagner only allowed a
single contention interrogatory and significantly narrowed the interrogatory's
scope. See Wagner, 238 F.R.D. at 426. Here, in contrast, Sann seeks at least 12
contention interrogatories, each, arguably, with multiple distinct sub-parts. In fact,
upon close review, these 12 interrogatories generally track the substantive
allegations against Sann and the Corporate Defendants in the FTC's Complaint.

(See Doc. 258-2 at 3-15 (seeking "all facts supporting, negating, or otherwise
relating to" allegations in 12 paragraphs in the FTC's Complaint out of a total of
42, notwithstanding the fact that many paragraphs in the Complaint are factual in
nature).) This case is thus distinguishable from Wagner. Instead, the Court finds
that Sann's requests are more like the requests for production in Aldapa v. Fowler

Packing Co. Inc., 310 F.R.D. 583, 591 (E.D. Cal. 2015).
There, the plaintiff in the case sought "all documents related to any of the
allegations in the complaint." Aldapa, F.R.D. at 591. The district court
determined that this request was overly burdensome and found that"[ c]ontention
interrogatories should not require a party to provide the equivalent of a narrative

18

account of its case, including every evidentiary fact, details of testimony of
supporting witnesses, and the contents of supporting documents." Id. (quoting
Lucero v. Valdez, 240 F.R.D. 591, 594 (D.N.M. 2007)). Here, Sann is not, strictly
speaking, seeking "each and every fact" supporting the FTC's allegations.
However, his requests seek the vast majority of the facts supporting the FTC's
Complaint and it would be overly burdensome for the FTC to respond. Sann' s
motion to compel is denied.

II. Sann's Scheduling Motions
As mentioned, Sann moves for several modifications to the Court's
Scheduling Order, dated November 12, 2015 (Doc. 193.) Primarily, Sann requests
that the Court: (1) reset the discovery and motions deadlines until after he has
been released from Taft CI; and (2) reset the final pretrial conference and trial date
for six months after he has been released. In addition to requests to modify the
Scheduling Order, Sann also moves to extend the time to respond to various
motions currently pending before the Court. The Court will address these requests
in reverse order.

A. Extension to File Responses
Sann seeks an extension to file responsive briefs to various pending
motions, such as: (1) the reply to the FTC's brief in opposition to his motion for

19

summary judgment (Doc. 232); (2) the response brief to the FTC's cross-motion
for summary judgment (Doc. 236); (3) the response brief to the FTC's motion for
sanctions (Doc. 240); (4) the response brief to the FTC's motion in limine (Doc.
252); and (5) the response brief to the FTC's motion for summary judgment (Doc.
245).
Sann "filed" his motion for extensions on December 5, 2016. 8 However,
many of these extensions are overdue. The deadlines for the responses were: (1)
November 7, 2016, for the reply to the FTC's brief in opposition to Sann's motion
for summary judgment; (2) November 14, 2016, for the response brief to the
FTC's cross-motion for summary judgment; (3) November 21, 2016, for the
response brief to the FTC's motion for sanctions; (4) December 6, 2017, for the
response brief to the FTC's motion in limine; and (5) December 9, 2017, for the
response brief to the FTC's motion for summary judgment. 9
Upon review of these deadlines, the Court finds that the extensions for the
responses to the cross-motions for summary judgment (Sann's "common carrier"

8

Though the Court received Sann's motion on December 9, 2016, under the "prison
mailbox rule," the motion is deemed filed at the time it is given to a prison official to be mailed.
See Houston v. Lack, 487 U.S. 266 (1988).
9

Under this District's Local Rules, "[r]esponses to motions ... for summary judgment
must be filed within 21 days after the motion was filed. Responses to all other motions must be
filed within 14 days after the motion was filed." L.R. 7.l(d)(l)(B). Reply briefs may be filed
"within 14 days after the response was filed." L.R. 7.l(d)(l)(C).
20

claim (Docs. 232; 236)) are untimely. Further, as mentioned above, the Court
considers those motions fully briefed and will rule on them separately from this
Order. The Court will thus deny Sann's motion as it pertains to these motions.
Likewise, the request for extension to respond to the FTC's motion for sanctions
(Doc. 240) is also untimely. However, as ruled on above, the Court will deny the
motion for sanctions without prejudice. As such, Sann's request is now moot and
the Court will deny it as such.
This leaves the response brief to the FTC's motion in limine and the motion
for summary judgment (Docs. 245; 252). Sann requested an extension for these
motions before the response briefs were due and thus his request was timely.
However, Sann's requested extension is open ended and not fixed in time. Sann
asks that he be able to file the responsive briefs for these motions at some time
after he has been released from prison. Nevertheless, because Sann's request was
timely, and because the FTC's motion for summary judgment is dispositive to this
case, the Court will allow Sann to file his responsive briefs only as to these
motions. However, the Court will set a defined date for these responses and will
order Sann to mail these briefs on or before March 3, 2017. At that time, the
Court will then set a hearing to address the motions. As discussed below, this will
affect the trial date in this matter.

21

B. Motion to Modify the Scheduling Order
Finally, Sann moves to modify the Court's current Scheduling Order (Doc.
193) and reset the discovery and motions deadlines, as well as the date for the final
pretrial conference and trial. Pursuant to Rule 16, Sann requests that the discovery
and motions deadlines be extended until he has been released from prison in order
for him to conduct additional discovery and file any resulting motions. The
discovery and motions deadlines were November 10, 2016, and December 9,
2016, respectively. Sann signed his motion on November 25, 2016, and it was
received by the Court on December 5, 2016.
In his motion, Sann complains that, due to his incarceration and pro se
status, he has not had the resources nor opportunities to adequately conduct
discovery and research the issues raised in this case. Citing a lack of fundamental
fairness, Sann argues that discovery should be reopened once he has been released
from prison and, consequently, he should then be allowed to file additional
motions once discovery has been completed. As a result of these requested
modifications to the Scheduling Order, Sann argues that the trial and final pretrial
conference should then be rescheduled to a time following this extended discovery
and motions period. The FTC objects to all modifications of the current
Scheduling Order.

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Federal Rule of Civil Procedure 16 states that a court's scheduling order
"may be modified only for good cause and with the judge's consent." Fed. R. Civ.
P. 16(b)( 4). Sann argues that good cause exists by virtue of his incarceration. The
Court disagrees for three reasons.
First, the Court was aware of Sann's incarceration and specifically set an
usually long period for discovery and the filing of motions to accommodate this.
Thus the circumstances that Sann complains about, i.e., his incarceration, existed
at the time the Scheduling Order was issued and were foreseen and addressed by
the Court. Second, the Scheduling Order clearly mandates that no continuances of
the motions deadline or trial date will "be granted absent compelling reasons .... "
(Doc. 193 at 3.) The Court does not view Sann's incarceration to be a compelling
reason. If it did, then every pro se prisoner who is currently involved with civil
litigation in this Court could delay their trial, as well as other critical deadlines,
until they were released from prison. This approach would fundamentally disrupt
the Court's business. Lastly, Sann knew about these deadlines in early November
of 2015. However, instead of promptly alerting the Court that he would require
more time for discovery and to file motions, Sann remained silent for more than a
year. The Court declines to now reward Sann for his lack of diligence and will
deny the motion as it pertains to his request to modify the discovery and motions

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deadlines. 10
Nevertheless, because the Court has concluded that Sann should be given an
opportunity to address and argue the FTC's dispositive motion for summary
judgment, the Court is forced to vacate the final pretrial conference and trial
scheduled for March 20, 2017. Upon resolution of the FTC's motion for summary
judgment, the Court will then reset these events, if needed. Consequently, the
Court will grant Sann' s motion in part and vacate the final pretrial conference and
trial for the sole purpose of resolving the FTC's motion for summary judgment.
Accordingly, IT IS ORDERED that:
(1) PlaintiffFTC's Motion for Sanctions and to Compel (Doc. 240) is

GRANTED IN PART and DENIED IN PART in accordance with the above
Order;
(2) Defendant Steven V. Sann's Motion for Protective Order (Doc. 242) is
DENIED;
(3) Sann's Motion to Compel Discovery Responses (Doc. 257) is DENIED;
(4) Sann's Motion to Extend the Time to Respond to Motions and to Set
Briefing Schedule (Doc. 259) i's GRANTED IN PART and DENIED IN PART in

10

As discussed above, the Court will keep discovery open strictly to allow Sann and the
Corporate Defendants to appear for their depositions and to allow Lane to produce the AppRiver
emails.

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accordance with the above Order; and
(5) Sann's Motion to Amend or Modify the Pre-Trial Conference
Scheduling Order (Doc. 256) is GRANTED IN PART and DENIED IN PART in
accordance with the above Order. The Final Pretrial Conference and Trial set for
March 20, 201 7, are VACATED and will be reset following the resolution of the
FTC's Motion for Summary Judgment
DATED this

3~~ day of February,

Dana L. Christensen, Chief Judge
United States District Court

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