Las Vegas Skydiving Adventures LLC v. Groupon, Inc.

Filing 68

ORDER denying as moot 62 Motion for Protective Order; parties must file a joint stipulation regarding their meet and confer, as detailed in this order, by Friday, October 30, 2020. Signed by Magistrate Judge Cam Ferenbach on 10/16/2020. (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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***

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LAS VEGAS SKYDIVING ADVENTURES
LLC,

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2:18-cv-02342-APG-VCF

Plaintiff,

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vs.

ORDER

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GROUPON, INC.,

MOTION FOR PROTECTIVE ORDER [ECF
NO. 62]

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Defendant.

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Before the Court is plaintiff Las Vegas Skydiving Adventures LLC’s motion for a protective

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order (ECF No. 62). The Court denies the motion.
I.

Background
Plaintiff brings various claims against Groupon, Inc. related to its alleged infringement of

plaintiff’s trademark. (See ECF Nos. 1 and 30).
Plaintiff argues in its motion for a protective order that Groupon wants to take plaintiff’s

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principals’ depositions on an unspecified videoconferencing platform. (ECF No. 62 at 3). Plaintiff

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argues that it was unable to meet and confer with Groupon regarding the virtual deposition protocols:

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plaintiff’s attorney Jodi Lowry says she emailed Groupon’s attorney Tyler Andrews with multiple

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proposed meet and confer dates and despite waiting two weeks, Andrews did not respond to her inquiry,

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which led her to file this motion. (Id.).

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Groupon argues in its response that it vacated the deposition plaintiff complains of which moots

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plaintiff’s motion. (ECF No. 66). Groupon also argues that it attempted to meet and confer with plaintiff

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regarding the deposition, which is why the parties stipulated to extend both Groupon’s time to respond

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and plaintiff’s time to file a reply. (ECF No. 65). Groupon’s attorney Andrews says he sent multiple

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emails to plaintiff’s counsel that all went unanswered for multiple days followed by a series of phone tag

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between the attorneys. (ECF No. 66 at 3-4). Groupon asks the Court for sanctions because it had already

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proposed using the virtual platform Veritext Legal Solutions with plaintiff for the remote depositions

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and that plaintiff refused to withdraw the motion even though it vacated the depositions at issue. (Id. at

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3-5 and ECF No. 66-1 at 3). Plaintiff argues in its reply that even though the depositions have been

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vacated, its motion is not mooted because counsel has still been unable to meet and confer with

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Groupon’s counsel regarding its concerns about the virtual platform Veritext. (ECF No. 67).

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II.

Discussion
“It is well recognized that a federal district court has the inherent power to administer its docket

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in a manner that conserves scarce judicial resources and promotes the efficient and comprehensive

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disposition of cases.” M.C. Prods., Inc. v. AT&T (In re M.C. Prods., Inc.), No. 98-56964, 1999 U.S.

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App. LEXIS 34116, at 2 (9th Cir. Dec. 22, 1999) (citations omitted). “Discovery motions will not be

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considered unless the movant…has made a good faith effort to meet and confer as defined in LR IA 1-

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3(f) before filing the motion.” LR 26-6(c).

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"The district court has wide discretion in controlling discovery." Little v. City of Seattle, 863

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F.2d 681, 685 (9th Cir. 1988). The federal rules of civil procedure, “should be construed, administered,

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and employed by the court and the parties to secure the just, speedy, and inexpensive determination of

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every action and proceeding.” FRCP 1 (emphasis added). “A party or any person from whom discovery

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is sought may move for a protective order in the court” and the court may, for good cause, issue an order

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to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense.” FRCP

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26(c). The party seeking protection bears the burden of showing specific prejudice or harm will result if

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no protective order is granted. See Beckman Indus., Inc., v. Int'l. Ins. Co., 966 F.2d 470, 476 (9th Cir.

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1992). Rule 26(c) requires more than “broad allegations of harm, unsubstantiated by specific examples

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or articulated reasoning.” Id; see also Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th

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Cir. 2003) (citing San Jose Mercury News, Inc., v. District Court, 187 F.3d 1096, 1102 (9th Cir. 1999)

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(holding that the party must make a particularized showing of good cause)).

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The Court has already authorized remote depositions in this case. (ECF No. 63). The attorneys

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on both sides have failed to meet and confer in good faith, have been unresponsive via email, and

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engaged in phone tag with each other regarding potential remote depositions. Plaintiff’s counsel asks the

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Court to solve a dispute that is moot given that the depositions at issue have been vacated. The Court

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denies plaintiff’s motion as moot.

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The remaining underlying issue, that attorneys on both sides are unable to effectively

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communicate or cooperate with each other, should not be before the Court. The Court denies

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defendant’s request for sanctions because both parties’ attorneys have failed to communicate with each

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other in good faith, which wastes scarce judicial resources. Counsel for both parties have two weeks to

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meet and confer in good faith. The parties may meet and confer by telephone, but a scheduled video

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conference would be more effective given that the parties’ counsel have had so many communication

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breakdowns about the use of technology. The parties should confer regarding (1) whether Groupon plans

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to re-notice the depositions at issue in this motion; (2) the parties’ general plans for discovery going

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forward; (3) a protocol regarding how the attorneys will communicate with each other in the future (i.e.

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the attorneys could schedule a monthly conference, exchange cell phone numbers, or communicate other

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good ways to reach other in a timely fashion); and (4) the parties’ plans and protocols regarding the use

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of technology for remote depositions going forward. The parties must file a joint stipulation in two

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weeks notifying the Court that they have met and conferred in good faith regarding these four topics.

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The Court will consider sanctioning both parties’ attorneys if they are unable to meet and confer in good

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faith or resolve these issues without the Court’s intervention.

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ACCORDINGLY,

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IT IS ORDERED that plaintiff Las Vegas Skydiving Adventures LLC’s motion for a protective

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order is DENIED AS MOOT.
IT IS FURTHER ORDERED that the parties must file a joint stipulation regarding their meet
and confer, as detailed in this order, by Friday, October 30, 2020.

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IT IS SO ORDERED.

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DATED this 16th day of October 2020.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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