Ferris et al v. Wynn Resorts Limited et al

Filing 184

ORDER Denying 183 Discovery Plan and Scheduling Order. IT IS FURTHER ORDERED that in the event the parties are unable to agree upon a Phase One of Discovery they are to advise the Court of the same on or before 10/25/2021. Signed by Magistrate Judge Elayna J. Youchah on 10/4/2021. (Copies have been distributed pursuant to the NEF - JQC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOHN V. FERRIS and JOANN M.
FERRIS, individually and on behalf of all
others similarly situated,

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Case No. 2:18-cv-00479-APG-EJY
ORDER

Plaintiffs,
v.
WYNN RESORTS LIMITED, STEPHEN A.
WYNN, CRAIG SCOTT BILLINGS,
STEPHEN COOTEY, MATTHEW O.
MADDOX, JOHN J. HAGENBUCH,
ROBERT J. MILLER, PATRICIA
MULROY, CLARK T. RANDT JR., ALVIN
V. SHOEMAKER, KIMMARIE SINATRA,
DANIEL B. WAYSON, JAY L. JOHNSON,
RAY R. IRANI, and J. EDWARD VIRTUE,

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Defendants.

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Pending before the Court is the Stipulated Discovery Plan and Scheduling Order (ECF No.

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183). Despite the title, the parties disagree on virtually all aspect of discovery, when it should occur,

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and how it should occur. The Court finds that, generally, there is no way to fully bifurcate class

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certification discovery from merits discovery. These subject matters inevitably overlap, and an order

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granting bifurcation, without consideration of this overlap, inevitably leads to substantial motion

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practice.

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Accordingly, IT IS HEREBY ORDERED that the Stipulated Discovery Plan and Scheduling
Order (ECF No. 183) is DENIED without prejudice.
IT IS FURTHER ORDERED that the parties are to meet and confer regarding discovery and
submit proposed orders as follows:
1. Electronically Stored Information: The parties shall submit a plan outlining the
discovery of electronically stored information (“ESI”) no later than October 25,
2021. Until that time, all ESI and non-ESI materials should be preserved and not
destroyed. Any discovery prior to the adoption of an ESI protocol (the “ESI
Protocol”) shall be without alteration in the form currently stored, in the manner
previously produced, or in a PDF copy of the same. Production should be in native
electronic format if specifically requested. Email attachments should be produced as
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part of the email so they are together. The Parties may engage a forensic expert or
experts if deemed necessary or desirable in connection with any request for ESI. If,
by October 25, 2021, the parties are unable to agree upon a proposed ESI Protocol,
the parties shall, on that date, jointly notify the Court and provide the Court with a
proposed date that will allow the parties to complete negotiations regarding the ESI
Protocol. In the event the parties are at an impasse, the parties shall provide a date
upon which they will submit their disputes related to the ESI Protocol to the Court.
2. Protective Order: The parties shall submit a proposed stipulated confidentiality and
protective order no later than November 1, 2021. If the parties need additional time
to reach agreement on a proposed confidentiality and protective order, they shall file
a stipulation no later than November 1, 2021 seeking such time. If the parties are at
an impasse, the parties shall advise the Court of the same identifying the subject
matters on which they cannot agree and whether they seek to file motions or would
agree to meet with the Court to discuss their impasse without engaging in motion
practice.
3. Phased Discovery Plan: The parties shall submit a proposed discovery plan and
scheduling order no later than October 20, 2021 that addresses the following issues:
a. Phase One shall include discovery necessary to prepare a Motion for Class
Certification, the Response, and Reply. Such discovery must be proportional and
relevant to the needs of class certification issues in this case. Discovery in this
phase may include investigation into all elements of Rule 23 (including, but not
limited to, predominance and superiority) and merits based discovery that is
necessary for the Court to meaningfully consider a class certification motion and
any opposition thereto. Discovery pertaining to damages is not included in this
phase of discovery.
i. The parties shall include a deadline for written discovery, deposition
discovery, and expert discovery followed by dates for the Motion for Class
Certification, Response, and Reply. This proposed plan and order shall
address whether the parties reserve the right to take second depositions of any
individuals deposed during Phase 1. A consolidated Reply by Plaintiffs, if
more than one Response is filed, is granted. The length of the consolidated
Reply may be 35 pages excluding exhibits; provided, however, that if any
party believes they must file a brief in excess of the number pages allowed by
Local Rule, this Order does not foreclose the opportunity to seek such leave.
ii. The parties shall propose a deadline for the filing of the Motion for
Certification, the Response(s), and Reply.

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b. Phase Two: Within 21 days of the Court ruling on certification, the parties shall
submit a second proposed discovery plan and scheduling order that shall address
all remaining merits based and damages discovery. This proposed plan and order
shall address a deadline for any additional written and deposition discovery.
Deadlines for merits and damages expert disclosures and depositions shall be
included. The parties shall propose dates for Motions for Summary Judgment,
the Responses, and Replies.

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IT IS FURTHER ORDERED that the inadvertent waiver of privilege shall be governed by

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Fed. R. Evid. 502(b) and case law interpreting the same. Pursuant to Fed. R. Evid. 502(d), upon a

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determination by the Court that there has been an inadvertent waiver of privilege, such waiver shall

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not effect a general waiver of privilege.

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IT IS FURTHER ORDERED that in the event the parties are unable to agree upon a Phase

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One of Discovery they are to advise the Court of the same on or before October 25, 2021. In such

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case, on or before October 25, 2021, Plaintiffs and Defendants shall submit individual Phase One

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discovery plans to be considered by the Court.

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Dated this 4th day of October, 2021.

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ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE

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