Ashcraft v. Welk Resort Group, Corp. et al

Filing 23

ORDER denying 15 Motion to Consolidate Cases. Signed by Magistrate Judge Nancy J. Koppe on 5/1/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOHN E. ASHCRAFT,
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Plaintiff(s),
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v.
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WELK RESORT GROUP, CORP., et al.,
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Defendant(s).
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__________________________________________)

Case No. 2:16-cv-02978-JAD-NJK
ORDER

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Pending before the Court is Defendant Experian’s motion to consolidate Rule 30(b)(6)

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depositions in five cases. Docket No. 15. Because the deposition in this case is scheduled to proceed

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on May 3, 2017, the Court agreed to expedite briefing and resolution of that motion. See Docket No.

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18. Plaintiff filed a response in opposition, and Experian filed a reply. Docket Nos. 20, 21. The Court

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has also listened to the hearing held by United States Magistrate Judge Carl W. Hoffman on April 27,

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2017, on the same motion filed in Uehara v. TD Bank, Case No. 2:17-cv-00190-GMN-CWH. The Court

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finds the motion properly decided without a hearing held in this case. See Local Rule 78-1.

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The Court first addresses the deteriorating relationship between counsel, evidenced both by the

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tone of the briefing and their inability to compromise to avoid motion-work. “Obstructive refusal to

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make reasonable accommodation . . . not only impairs the civility of our profession and the pleasures

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of the practice of law, but also needlessly increases litigation expense to clients.” Hauser v. Farrell, 14

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F.3d 1338, 1344 (9th Cir. 1994). “Counsel should strive to be cooperative, practical and sensible, and

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should seek judicial intervention ‘only in extraordinary situations that implicate truly significant

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interests.’” Cardoza v. Bloomin’ Brands, Inc., 141 F. Supp. 3d 1137, 1145 (D. Nev. 2015) (quoting In

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re Convergent Techs. Securities Litig., 108 F.R.D. 328, 331 (N.D. Cal. 1985)). The recent amendments

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to the Federal Rules of Civil Procedure were intended to emphasize the importance of common sense

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cooperation between counsel, and to curb the culture of scorched earth litigation tactics. See Nationstar

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Mtg., LLC v. Flamingo Trails No. 7 Landscape Maintenance Assoc., 316 F.R.D 327, 330 (D. Nev.

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2016). This is most obviously evident in the amendment to Rule 1 of the Federal Rules of Civil

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Procedure, which now expressly requires parties (in addition to courts) to strive for the just, speedy, and

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inexpensive resolution of cases. See Roberts v. Clark County School Dist., 312 F.R.D. 594, 603 (D.

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Nev. 2016). This Court’s local rules were also amended in 2016 to make plain that “[t]he court expects

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a high degree of professionalism and civility from attorneys.” Local Rule 1-1(c).

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“The need for compliance with these obligations is especially important when a case is complex

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or hundreds of substantially similar cases are pending with the same attorneys. Common sense and

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practicality should be at the forefront of counsel’s discussions.” The Bank of N.Y. Mellon v. Paradise

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Court Homeowners Assoc., 2016 U.S. Dist. Lexis 103384, at *3 (D. Nev. Aug. 5, 2016). The need for

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cooperation is also heightened when the dispute that has arisen would require emergency treatment if

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presented to the Court, such that the parties must file briefs with limited time and the Court must resolve

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the dispute with limited time. Cf. Cardoza, 141 F. Supp. 3d at 1142 (“a good faith and thorough attempt

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to resolve the dispute without Court intervention is even more critical when time is of the essence”); see

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also id. at 1140-41 (outlining the reasons why emergency motions are disfavored). In addition to the

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basic need for civility and cooperation in even the most routine case, this matter involves both of the

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extenuating circumstances regarding a high case volume of similar cases between counsel and the need

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to resolve the dispute on an emergency basis. Nonetheless, counsel have fallen below the level of

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cooperation and civility required of them. The Court urges counsel to reset their relationship so that

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they can work together more cooperatively moving forward.

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Turning to the substance of the pending motion, it will be denied. Both sides agree that it would

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be beneficial to streamline the Rule 30(b)(6) depositions to avoid duplication and unnecessary

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expenditure of resources in the similar cases that are pending. The Court wholeheartedly agrees that it

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is preferable to not conduct a full Rule 30(b)(6) deposition in every one of these cases. The problem is

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that the parties cannot agree on the mechanism to achieve that end. The gist of the dispute is that
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Plaintiff would like to use the testimony obtained in previous cases in these cases, while Experian would

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like to conduct a consolidated deposition for these cases. Compare, e.g., Docket No. 15 at 7 with Docket

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No. 20 at 3.1 As both sides point out in countering the other’s proposal, however, there are logistical

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and legal complications with each proposal. By way of example, Plaintiff’s proposal may enable him

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to cherry-pick testimony to bolster his case; Experian’s proposal may hinder Plaintiff’s ability to elicit

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testimony that fits the specific circumstances of each case.2 While the parties have identified such

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problems, they have not presented the Court with concrete, workable solutions that can be implemented.

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It is the burden of attorneys to propose solutions to the difficulties they are facing, first through the meet-

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and-confer process and then to the Court if necessary. The Court declines to engage in the undertaking

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of formulating a solution for the attorneys.

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In short, the Court agrees with both parties that streamlining the Rule 30(b)(6) depositions would

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be beneficial for everyone involved. Ultimately, however, neither side has persuaded the Court that its

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proposal is legally sound and logistically practical. Because neither party provided the Court with a

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workable plan to obtain the laudable objective of avoiding duplicative discovery, the Court declines to

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grant relief to either party. The parties’ competing requests are both DENIED.

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Counsel shall continue to meet-and-confer to find a mutually agreeable solution to their

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predicament. The Court is confident that the counsel can find common ground to further both of their

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clients’ interests. In the meantime, counsel will have to continue with the case-by-case deposition

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practice.

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IT IS SO ORDERED.

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DATED: May 1, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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Plaintiff’s proposal is not properly before the Court, as he did not file a motion seeking that relief.

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To be clear, this is by no means an exhaustive list of the problems the parties have identified with
the opposing parties’ proposal.
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