Ferris et al v. Wynn Resorts Limited et al
Filing
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ORDER Granting 362 Motion to Extend Time. Signed by Magistrate Judge Brenda Weksler on 3/26/2024. (Copies have been distributed pursuant to the NEF - RJDG)
Case 2:18-cv-00479-APG-BNW Document 362 Filed 03/25/24 Page 1 of 8
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ANDREW R. MUEHLBAUER, ESQ.
Nevada Bar No. 10161
MUEHLBAUER LAW OFFICE, LTD.
7915 West Sahara Avenue, Suite 104
Las Vegas, Nevada 89117
Telephone: 702.330.4505
Facsimile: 702.825.0141
Email: andrew@mlolegal.com
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POMERANTZ LLP
Jeremy A. Lieberman (pro hac vice)
Murielle J. Steven Walsh (pro hac vice)
Emily C. Finestone (pro hac vice)
Elina Rakhlin (pro hac vice)
600 Third Avenue, 20th Floor
New York, New York 10016
Tel: (212) 661-1100
Fax: (917) 463-1044
Email: jalieberman@pomlaw.com
mjsteven@pomlaw.com
efinestone@pomlaw.com
erakhlin@pomlaw.com
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Attorneys for Class Representatives John V. and JoAnn M. Ferris
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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JOHN V. FERRIS and JOANN M. FERRIS,
Individually and on Behalf of All Others
Similarly Situated,
Plaintiffs,
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v.
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WYNN RESORTS LIMITED, et al.,
Case No. 2:18-CV-00479-APG-BNW
CLASS REPRESENTATIVES’ MOTION
FOR AN EXTENSION OF DISCOVERY
DEADLINES AND MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT
[FIRST REQUEST]
Defendants.
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MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES
Case 2:18-cv-00479-APG-BNW Document 362 Filed 03/25/24 Page 2 of 8
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Pursuant to LR IA 6-1 and LR 26-3 Class Representatives John V. Ferris, JoAnn M. Ferris,
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and Jeffrey Larsen (“Plaintiffs”), by and through their attorneys of record, hereby respectfully
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request that the Court: (a) extend the fact discovery deadline set forth in the Stipulated Discovery
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Plan and Scheduling Order Pursuant to the Court’s April 6, 2023 Motion Hearing Order (ECF No.
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302) (the “Scheduling Order”) to the later of (1) ninety (90) days after the Court’s ruling on
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Plaintiffs’ Motion to Compel (ECF No. 327) (the “Motion to Compel”) and Defendants Wynn
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Resorts Limited (“Wynn” or the “Company”) and Matthew Maddox’s (collectively, “Defendants”)
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Motion for a Protective Order (ECF No. 329) (the “Motion for Protective Order”) (collectively,
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the “Pending Motions”), or (2) ninety (90) days after the current fact discovery deadline, May 31,
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2024; and (b) permit the parties to submit a proposed revised Scheduling Order within ten (10)
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days of its ruling on the Pending Motions. This is the first request for an extension of the
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Scheduling Order, this request is being made more than 21 days before the expiration of the
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discovery deadlines that Plaintiffs seek to modify, and for the reasons set forth below, there is good
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cause for the requested extension.
INTRODUCTION
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Plaintiffs’ requested extension is warranted because the discovery deadlines have been
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impacted by the two Pending Motions: Plaintiffs’ Motion to Compel and Defendants’ related
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Motion for Protective Order.
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The Motion to Compel asks the Court to compel Defendants to apply Plaintiffs’ requested
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search terms, produce pre-Class Period and post-Class Period discovery, produce documents from
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twenty-six (26) additional custodians, 1 and produce documents responsive to certain disputed
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requests for production. ECF No. 327 at 22.2 Defendants’ Motion for Protective Order asks the
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Defendants originally only agreed to produce documents for seven (7) custodians. ECF No. 327
at 3. After Plaintiffs moved to compel, Defendants agreed to search the custodial files of twelve
(12) additional custodians. ECF No. 328 at 20. Fourteen (14) custodians still remain in dispute.
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Plaintiffs also opposed Defendants’ motion for partial summary judgment related to the February
12, 2018 corrective disclosures on the grounds that Defendants refused to produce documents from
after February 12, 2018 and such documents are necessary to defend against the motion. ECF No.
335 at 22-28.
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MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES
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Court to deny the relief that Plaintiffs sought in the Motion to Compel, require Plaintiffs to
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negotiate a fact stipulation, and permit Defendants to hide the identities of Mr. Wynn’s accusers
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from Plaintiffs. ECF. No. 329 at 14-21.
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The Court’s ruling on the Pending Motions could require Defendants to search for and
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produce documents for over a dozen additional custodians, applying broader search terms, and for
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a broader time period than the circumscribed period roughly mirroring the Class Period that
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Defendants searched. Although Plaintiffs have diligently served notices of depositions while the
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motions have been pending, multiple deponents have indicated their unavailability on the noticed
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dates. See Declaration of Murielle J. Steven Walsh (“MJSW Decl.”), ¶ 18. Further, proceeding
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with depositions before the Court rules on the Pending Motions would be inefficient because if
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Defendants are ordered to produce these substantial additional documents, it could result in
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Plaintiffs having to reexamine witnesses already deposed based on the new information and
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documents available. Accordingly, good cause exists for the requested extension.
DISCOVERY COMPLETED TO DATE
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The Court bifurcated discovery into two phases: Phase One, involving class certification
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issues, and Phase Two, involving merits and damages issues. ECF No. 184. The parties completed
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Phase One discovery and the Court certified the Class on March 1, 2023. ECF No. 283.
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Since then, the parties have been engaged in Phase Two discovery. Defendants served
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amended responses to Plaintiffs’ first request for the production of documents, and the parties met
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and conferred on several occasions regarding their responses, as well as the appropriate scope of
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discovery. MJSW Decl. ¶¶4-5. Ultimately, Defendants produced a total of 3,896 documents.
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Plaintiffs served document subpoenas on the Nevada Gaming Control Board (“NGCB”),
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the Massachusetts Gaming Commission (“MGC”); Elaine Wynn; Joele Frank, Wilkinson Brimmer
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Katcher (“Joele Frank”); and Kevin Tourek. MJSW Decl. ¶¶7-8, 10, 12, 14. The MGC and NGCB
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collectively produced 357 documents. MJSW Decl. ¶9. Ms. Wynn objected and refused to
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produce any documents. MJSW Decl. ¶¶11. Joele Frank served objections to the document
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subpoena and has not produced any documents to date. MJSW Decl. ¶13. Mr. Tourek responded
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MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES
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that he did not have any responsive materials in his possession, custody, or control. MJSW Decl.
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¶15.
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Plaintiffs also served deposition subpoenas on Joele Frank and Kevin Tourek, but the
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depositions have not yet been scheduled. MJSW Decl. ¶¶12, 14, 16. In addition, Plaintiffs served
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notices of deposition on Michael Weaver and Defendants Matthew Maddox, Stephen Wynn,
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Stephen Cootey, and Kimmarie Sinatra with tentative deposition dates, but counsel for Mr. Wynn,
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Mr. Maddox, Mr. Weaver, Ms. Sinatra, and Mr. Cootey have indicated they are not available on
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the noticed dates. 3 MJSW Decl. ¶18. Plaintiffs also notified Defendants that they anticipate
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needing to take more than ten depositions, but Defendants were not willing to stipulate to Plaintiffs
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taking additional depositions beyond the ten allotted to Plaintiffs until they have (1) taken 10
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depositions, and (2) made a particularized showing of need for additional depositions. MJSW
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Decl. ¶¶19-20.
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In addition, Defendants produced a privilege log on January 31, 2024, a supplemental
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privilege log on February 7, 2024, and a second supplemental privilege log on March 5, 2024 that
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contains over 2,470 entries. MJSW Decl. ¶21. Plaintiffs wrote Defendants regarding certain
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deficiencies with Defendants’ privilege log, and the parties met and conferred regarding the issues.
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MJSW Decl. ¶¶22-23.
REMAINING DISCOVERY TO BE COMPLETED
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Insofar as the Court rules in Plaintiffs’ favor on the Pending Motions, Defendants will be
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required to make additional document productions.
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endeavoring to resolve the issues with Defendants’ privilege log without Court intervention, they
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appear to be at an impasse on certain issues, and Plaintiffs anticipate filing a motion to compel the
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production of documents improperly withheld as privileged. 4 Plaintiffs also intend to serve
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additional deposition subpoenas and deposition notices – which may require Court approval
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In addition, while the parties are still
They did not propose any alternative dates when notifying Plaintiffs of their unavailability.
MJSW Decl. ¶20.
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Plaintiffs will likely need to seek another extension to allow for the adjudication of the parties’
privilege log disputes, given the substantial number of entries at issue.
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MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES
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insofar as Defendants refuse to stipulate to Plaintiffs exceeding the ten depositions allotted under
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the federal rules – and intend to depose the witnesses already subpoenaed or served with deposition
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notices.
In addition, the parties may conduct other discovery permitted under Federal Rules of Civil
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Procedure 26, 30, 33, 34, and 36.
REASON FOR EXTENSION
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A request for an extension “must . . . be supported by a showing of good cause for the
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extension.” LR 26-3. “Good cause to extend a discovery deadline exists ‘if it cannot reasonably
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be met despite the diligence of the party seeking the extension.’” Victor v. Walmart, Inc., 2021
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WL 3745190, at *2 (D. Nev. Apr. 8, 2021) (quoting Johnson v. Mammoth Recreations, Inc., 975
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F.2d 604, 609 (9th Cir. 1992)).
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Here, as explained above, the extension is necessary to allow the parties sufficient time to
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complete fact discovery following the Court’s ruling on the Pending Motions. Plaintiffs diligently
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raised the issue of Defendants’ insufficient document production with the Court on November 23,
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2023.
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parallel with their Motion for Protective Order. ECF No. 329 at 4. The Pending Motions were
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fully briefed as of January 5, 2024, and the Court held a hearing on February 12, 2024. ECF Nos.
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354, 359. The Court has not yet ruled on the Pending Motions.
ECF No. 327. Defendants then asked the Court to consider the Motion to Compel in
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Based on Defendants’ own representations, a ruling in Plaintiffs’ favor could require them
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to review over 870,000 additional documents. ECF No. 329 at 3. Defendants will presumably
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need additional time to conduct their pre-production privilege and relevance review, and Plaintiffs
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will need additional time to review any forthcoming productions and prepare for depositions.
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Regardless of how the Court rules, depositions have been delayed during the pendency of the
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motions. Plaintiffs served deposition notices, designating deposition dates in April and May.
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Counsel for Defendants and for Mr. Weaver have indicated that they are unavailable on those dates
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but have not proposed any alternative dates.
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unwillingness to stipulate to additional depositions until Plaintiff has exhausted their ten (10)
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Counsel for Defendants also expressed an
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MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES
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allotted depositions and shown a particularized need for additional depositions. Thus, the parties
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will likely need additional time to meet and confer about this dispute. Further, the parties will
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likely need additional time to resolve their disputes regarding Defendants’ privilege log.
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Accordingly, despite Plaintiffs’ diligence in pursuing discovery, the current fact discovery
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deadline cannot reasonably be met.
PROPOSED REVISED DEADLINES
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Plaintiffs propose that the fact discovery deadline set forth in the Scheduling Order be
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extended from May 31, 2024 until the later of (1) ninety (90) days after the Court’s ruling on the
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Pending Motions, or (2) ninety (90) days after the current fact discovery deadline, May 31, 2024.
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In addition, Plaintiffs propose that the Court allow the parties to submit a proposed revised
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Scheduling Order, resetting the remaining deadlines in the Scheduling Order, within ten (10) days
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of its ruling on the Pending Motions.
DEFENDANTS’ POSITION ON THE REQUESTED EXTENSION
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On March 20, 2024, counsel for Plaintiffs emailed counsel for the Company, Mr. Maddox,
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Mr. Wynn, Mr. Cootey, and Ms. Sinatra to ask their position on Plaintiffs’ requested extension.
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MJSW Decl. ¶24. Plaintiffs requested a response by close of business on March 21, 2024. MJSW
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Decl. ¶24. On March 21, 2024, counsel for Plaintiffs emailed counsel for the Company, Mr.
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Maddox, Mr. Wynn, Mr. Cootey, and Ms. Sinatra to correct an omission in the original extension
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proposal circulated. MJSW Decl. ¶25. Counsel for Mr. Cootey and counsel for Ms. Sinatra did
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not respond on March 21, 2024, nor have they responded as of the time of filing this Motion.
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MJSW Decl. ¶26. Counsel for Mr. Wynn responded that Mr. Wynn does not oppose the proposed
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extension. MJSW Decl. ¶27. Counsel for the Company and Mr. Maddox responded on March
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21, 2024, asking the basis for the Motion. MJSW Decl. ¶28. Counsel for Plaintiffs explained that
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Plaintiffs are seeking an extension because Defendants have represented that they may have to
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review over 800,000 documents if the Court grants the pending motion to compel, and in order to
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avoid deposing the same witness multiple times, Plaintiffs cannot proceed with depositions until
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document production is substantially complete. MJSW Decl. ¶29. On March 25, 2024, Counsel
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for the Company and Mr. Maddox responded that they “will agree to extend the fact deposition
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deadline until August 31, in case the Court grants Plaintiffs’ pending motion to compel,” but “by
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agreeing to extend the deadline, [they] are not in any way agreeing that Plaintiffs taking more than
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10 depositions is appropriate.” MJSW Decl. ¶30.
CONCLUSION
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For the foregoing reasons, good cause exists for the requested extension, and Plaintiffs
respectfully request that the Court grant the Motion.
Dated: March 25, 2024
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IT IS SO ORDERED
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DATED: 10:58 am, March 26, 2024
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POMERANTZ LLP
By /s/ Murielle J. Steven Walsh
Jeremy A. Lieberman (pro hac vice)
Murielle J. Steven Walsh (pro hac vice)
Emily C. Finestone (pro hac vice)
Elina Rakhlin (pro hac vice)
600 Third Avenue, 20th Floor
New York, New York 10016
Telephone: 212-661-1100
Facsimile: 917-463-1044
Email: jalieberman@pomlaw.com
mjsteven@pomlaw.com
efinestone@pomlaw.com
erakhlin@pomlaw.com
MUEHLBAUER LAW OFFICE, LTD.
BRENDA WEKSLER
Andrew R. Muehlbauer (Nevada Bar #10161)
UNITED STATES MAGISTRATE JUDGE 7915 West Sahara Avenue, Suite 104
Las Vegas, Nevada 89117
Telephone: 702.330.4505
Facsimile: 702.825.0141
Email: andrew@mlolegal.com
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Lead Counsel for Class Representatives
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THE ROSEN LAW FIRM, P.A.
Phillip Kim (pro hac vice)
Daniel Tyre-Karp (pro hac vice)
275 Madison Ave., 40th Floor
New York, NY 10016
Telephone: (212) 686-1060
Facsimile: (212) 202-3827
Email: pkim@rosenlegal.com
dtyrekarp@rosenlegal.com
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Additional Counsel
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MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES
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CERTIFICATE OF SERVICE
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I hereby certify that on March 25, 2024, a copy of the foregoing was filed electronically
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and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent
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by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone
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unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access
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this filing through the Court’s CM/ECF System.
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/s/ Murielle J. Steven Walsh
Murielle J. Steven Walsh
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MOTION FOR AN EXTENSION OF DISCOVERY DEADLINES
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