Hernandez et al v. Creative Concepts, Inc. et al

Filing 311

ORDER Denying 280 Plaintiff's Motion to Strike Defendants' Expert Economist and Denying 293 Defendants' Motion to Strike Plaintiffs' Motion to Strike as Moot. Signed by Magistrate Judge Cam Ferenbach on 09/23/2013. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GABRIEL HERNANDEZ, et al.
Plaintiff,

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vs.

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2:10-cv-02132-PMP-VCF

CREATIVE CONCEPTS, INC., et al.

ORDER

Defendant.

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Before the court is Plaintiffs Gabriel Hernandez, et al.’s (“Hernandez”) Motion to Strike

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Defendants’ Expert Economist (#280). Defendants NPL Construction, Co., et al. (“NPL”) filed an

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Opposition (#294) and Cross Motion to Strike Plaintiffs’ Motion to Strike (#293). Plaintiffs Replied

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(#296).

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This matter involves Hernandez’s various tort and contract claims against NPL. (See Compl. (#1-

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3) at 4–13). The parties are currently in the midst of discovery. On July 12, 2013, Hernandez deposed

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NPL’s expert economist, Paul White. (Pl.’s Mot. to Strike (#280) at 17:17). In preparation for the

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deposition, NPL reviewed and produced thousands of pages of documents. (See Def.’s Opp’n (#293) at

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6). NPL, however, did not produce a “National Wage Spreadsheet.” (Pl.’s Mot. to Strike (#280) at 1). At

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the deposition, Hernandez objected, asserted that the spreadsheet was essential to White’s deposition,

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and argued that NPL intentionally withheld the document. (Id.) NPL stated that the document was

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inadvertently omitted. (See Def.’s Opp’n (#293) at 6).

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On August 1, 2031, Hernandez filed that instant motion to strike (#280). Hernandez argues that

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the court should strike NPL’s expert because NPL intentionally omitted the “National Wage

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Spreadsheet” and, therefore, violated Federal Rule of Civil Procedure 26(g). (Id.) In response, NPL

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argues that Hernandez motion should be denied because the parties did not meet and confer. (Def.’s

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Opp’n (#293) at 14). The court agrees.

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Federal Rule of Civil Procedure 26(g) does not, by itself, contain a meet and confer requirement.

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See FED. R. CIV. P. 26(g); see also Sakakibara v. Spectrum Gaming Group, LLC, No. 2:09–cv–02000–

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HDM–LRL, 2010 WL 2947381 at *2 (D. Nev. July 22, 2010) (“No meet and confer requirement is

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attached to a motion for Rule 26(g) sanctions”). Local Rule 26-7(b), however, provides that “[d]iscovery

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motions will not be considered unless a statement of the movant is attached thereto certifying that, after

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personal consultation and sincere effort to do so, the parties have been unable to resolve the matter

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without Court intervention.” It is axiomatic that failure to comply with Local Rule 26-7(b) warrants the

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denial of a discovery motion. See Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 172

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(D. Nev.1996) (holding that personal consultation means the movant must personally engage in two-way

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communication with the nonresponding party to meaningfully discuss each contested discovery dispute

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in a genuine effort to avoid judicial intervention).

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The parties agree that they made no attempt to meet and confer. (Def.’s Opp’n (#293) at 2:6–8);

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(Pl.’s Reply (#296) at 2–3). Hernandez, however, asserts that Local Rule 26-7(b)’s meet and confer

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requirement is inapplicable because Hernandez’s Rule 26(g) motion “is not a discovery motion.” (Pl.’s

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Reply (#296) at 3:3–4). This argument is unpersuasive. Rule 26 is part of Title V of the Federal Rules of

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Civil Procedure. See FED. R. CIV. P. 26. Title V is entitled “Disclosures and Discovery.” Id. Similarly,

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Rule 26 is itself entitled, “Duty to Disclose; General Provision Governing Discovery.” Id. The court,

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therefore, concludes that a Rule 26(g) motion is a discovery motion, which invokes Local Rule 26-7(b)’s

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meet and confer requirement.

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ACCORDING, and for good cause shown,

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IT IS ORDERED that Plaintiffs Gabriel Hernandez, et al.’s Motion to Strike Defendants’ Expert

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Economist (#280) is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Strike Plaintiffs’ Motion to Strike
(#293) is DENIED as moot.

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IT IS SO ORDERED.

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DATED this 23th day of September, 2013.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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