Specialty Imaging et al v. MG Events et al

Filing 55

MEMORANDUM DECISION granting 41 Motion for Extension of Time to Complete Discovery; granting in part and denying in part 29 Motion to Compel; Finding as moot 33 Sealed Motion Under Rule 26(b)(5)(B) for a Determination of Plaintiffs' Privilege Claims. See order for deadline information. Signed by Magistrate Judge Paul M. Warner on 10/19/12. (jlw)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

SPECIALTY IMAGING, LLC, a Utah
limited liability company dba SPECIALTY
IMAGING INTERNATIONAL; and
MICHAEL BENJAMIN CROSBY, an
individual,
Plaintiffs,

MEMORANDUM DECISION
AND ORDER

Case No. 2:12-cv-681-DAK-PMW

v.
MG EVENTS, LLC, a Georgia limited
liability company; MG EVENT
SERVICES, LLC, a Georgia limited
liability company; SPECIALTY EVENT
IMAGING, LLC, a New Jersey limited
liability company; MARC GRAUER, an
individual; and JOHN DOES 1 through 5,
Defendants.

District Judge Dale A. Kimball
Magistrate Judge Paul M. Warner

District Judge Dale A. Kimball referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A).1 Before the court are (1) Specialty Event Imaging, LLC
and Marc Grauer’s (“Grauer”) (collectively, “Defendants”) motion to compel the deposition of
Spencer Topham (“Topham”), to extend the deadline for expedited discovery, and for an award
of sanctions against Speciality Imaging, LLC and Michael Benjamin Crosby (collectively,
“Plaintiffs”);2 (2) Defendants’ sealed motion under rule 26(b)(5)(B) of the Federal Rules of Civil
1

See docket no. 32.

2

See docket no. 29.

Procedure for a determination of Plaintiffs’ privilege claims;3 and (3) Plaintiffs’ motion for leave
to reschedule the deposition of Grauer.4 The court has carefully reviewed the written memoranda
submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United
States District Court for the District of Utah, the court has concluded that oral argument is not
necessary and will determine the motions on the basis of the written memoranda. See DUCivR
7-1(f).
RELEVANT BACKGROUND
Plaintiffs filed their complaint in this case on July 11, 2012, along with a motion for a
preliminary injunction.5 Two days later, Plaintiffs filed an ex parte motion to conduct limited,
expedited discovery prior to the hearing on their motion for a preliminary injunction.6 The court
declined to hear the motion on an ex parte basis and ordered briefing on the motion.7 After
receiving that briefing, the court granted Plaintiffs’ motion to conduct limited, expedited
discovery, but allowed both Plaintiffs and Defendants to conduct such discovery.8 The court set
a September 17, 2012 deadline for that discovery.9

3

See docket no. 33.

4

See docket no. 41.

5

See docket nos. 2-3.

6

See docket no. 12.

7

See docket no. 18.

8

See docket no. 26.

9

See id.
2

Several lawyers from the law firm of Callister Nebeker & McCullough (“CN&M”)
previously represented Plaintiffs in this case. Topham is one of those lawyers. Because of
earlier dealings with respect to this case that created an apparent conflict of interest, Topham and
the other lawyers from CN&M are no longer acting as Plaintiffs’ counsel in this case.10
While Topham was still acting as Plaintiffs’ litigation counsel in this case, the parties
agreed that Defendants could take his deposition on Tuesday, September 11, 2012. Late in the
day on Friday, September 7, 2012, another lawyer from CN&M sent a letter to Defendants’
counsel indicating that Plaintiffs were unwilling to make Topham available for a deposition
because he was acting as Plaintiffs’ litigation counsel. It is undisputed that Topham’s deposition
has not taken place.
Grauer’s deposition was scheduled to take place on September 17, 2012. However, by
September 15, 2012, the lawyers from CN&M determined that, because of the above-referenced
conflict of interest, they would no longer represent Plaintiffs in this case. Consequently,
Grauer’s deposition was postponed. It is likewise undisputed that Grauer’s deposition has not
taken place.
On the date of the deadline for expedited discovery, September 17, 2012, Defendants
filed their motion to compel the deposition of Topham, to extend the deadline for expedited
discovery, and for an award of sanctions against Plaintiffs. The following day, Defendants filed
their sealed motion under rule 26(b)(5)(B) for a determination of Plaintiffs’ privilege claims.

10

See docket no. 37.
3

Soon thereafter, at the request of counsel,11 the court held a telephonic conference to
discuss the status of the case, as well as the pending discovery motions. The lawyers from
CN&M did not participate in that conference. Instead, Plaintiffs’ new counsel participated.
During the conference, Plaintiffs’ new counsel indicated that they would soon be filing a motion
for leave to reschedule the deposition of Grauer. The court encouraged Plaintiffs’ counsel to file
that motion as soon as possible. The court then set briefing schedules for all of the motions.
Plaintiffs’ new counsel entered formal notices of appearance on September 27, 2012.12
On October 4, 2012, Plaintiffs filed their motion for leave to reschedule the deposition of Grauer.
ANALYSIS
I. Defendants’ Motion to Compel the Deposition of Topham, to Extend the Deadline for
Expedited Discovery, and for an Award of Sanctions Against Plaintiffs
Before addressing the merits of this motion, the court will address the timing of the
filings related to the motion. As indicated above, during a telephone conference with the court
and counsel for the parties, certain deadlines were set for briefing this motion. There was
apparently some confusion with respect to that schedule, resulting in a disagreement between the
parties about the timeliness of Plaintiffs’ memorandum in opposition to this motion.13 Because
the court has a strong preference for resolving disputes in their merits, the court will consider all
filings related to this motion, regardless of their filing dates.

11

See docket no. 40.

12

See docket nos. 37-39.

13

See docket nos. 43-45.
4

The court now turns to the merits of the motion. In their response to the motion,
Plaintiffs have indicated that they do not oppose Defendants taking the deposition of Topham or
extending the deadline for completing expedited discovery for that purpose. Accordingly, those
two issues do not require court action. However, Plaintiffs do oppose Defendants’ request for an
award of sanctions and, accordingly, the court will address that issue.
Defendants seek an award of sanctions for Topham’s failure to appear for his deposition.
More specifically, Defendants argue that, in order to stop Tophams’ deposition from going
forward, Plaintiffs should have filed a motion for a protective order under civil rule 26-2 of the
Rules of Practice for the United States District Court for the District of Utah, which Plaintiffs did
not do. See DUCivR 26-2 (“A party or a witness may stay a properly noticed oral deposition by
filing a motion for a protective order or other relief by the third business day after service of the
notice of deposition. The deposition will be stayed until the motion is determined. Motions filed
after the third business day will not result in an automatic stay.”). Defendants assert that
Plaintiffs’ failure to file such a motion improperly shifted the burden to Defendants to file their
motion to compel.
While it is true that Plaintiffs failed to file a motion for protective order under rule 26-2,
the court is not persuaded that said failure justifies an award of sanctions in this case. Plaintiffs
objected to the taking of Topham’s deposition based upon the fact that he was current litigation
counsel for Plaintiffs. The court concludes that Plaintiffs’ position was substantially justified
and, therefore, that an award of sanctions against Plaintiffs is not appropriate.

5

Based on the foregoing, Defendants’ motion to compel the deposition of Topham, to
extend the deadline for expedited discovery, and for an award of sanctions against Plaintiffs is
granted in part and denied in part. Because Plaintiffs have agreed to an extension of the deadline
for expedited discovery for the purpose of conducting Topham’s deposition and to making
Topham available for a deposition, that portion of Defendants’ motion is granted. The portion of
Defendants’ motion seeking an award of sanctions against Plaintiffs is denied.
II. Defendants’ Sealed Motion for a Determination Under Rule 26(b)(5)(B)
of Plaintiffs’ Privilege Claims
In their response to this motion, Plaintiffs have indicated that they have withdrawn their
claim of privilege with respect to the documents that are the subject of Defendants’ motion.
Accordingly, this motion has been rendered moot.
III. Plaintiffs’ Motion for Leave to Take the Deposition of Grauer
Although this motion is styled as a motion for leave to take the deposition of Grauer, it is
essentially a motion for an extension of the expedited discovery deadline, which would allow
Plaintiffs to take Grauer’s deposition. Defendants oppose Plaintiffs’ motion by arguing that
Plaintiffs have failed to satisfy the excusable neglect standard contained in rule 6(b)(1) of the
Federal Rules of Civil Procedure. See Fed. R. Civ. P. 6(b)(1).
Rule 6(b)(1) provides:
When an act may or must be done within a specified time, the court
may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a
request is made, before the original time or its extension
expires; or
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(B) on motion made after the time has expired if the party
failed to act because of excusable neglect.
Id. As noted by Defendants, “a finding of excusable neglect under Rule 6(b)[(1)(B)] requires
both a demonstration of good faith by the parties seeking the enlargement and also it must appear
that there was a reasonable basis for not complying within the specified period.” In re Four
Seasons Sec. Laws Litig., 493 F.2d 1288, 1290 (10th Cir. 1974); see also Putnam v. Morris, 833
F.2d 903, 905 (10th Cir. 1987) (providing that a demonstration of excusable neglect requires
“some showing of good faith on the part of the party seeking the enlargement and some
reasonable basis for noncompliance within the time specified” (quotations and citations
omitted)).
Because Plaintiffs did not move for an extension of the expedited discovery period until
after the original deadline had expired, their motion is governed by the excusable neglect
standard of rule 6(b)(1)(B). See Fed. R. Civ. P. 6(b)(1)(B). Under the circumstances of this case,
the court concludes that Plaintiffs have demonstrated excusable neglect. First, the court sees no
conclusive indication that Plaintiffs have failed to act in good faith. The timing of Plaintiffs’
change in counsel put Plaintiffs in a difficult situation with respect to the expedited discovery
deadline. It appears that Plaintiffs acted quickly in finding replacement counsel, and new counsel
acted quickly in seeking an extension of the expedited discovery deadline. The court believes
that those actions demonstrate good faith on the part of Plaintiffs. Second, Plaintiffs have
demonstrated a reasonable basis for failing to comply with the original expedited discovery
deadline. As previously indicated, Plaintiffs underwent a change in counsel near the end of the

7

discovery period. The court is persuaded that such a change provides a reasonable basis for both
the failure to conduct Grauer’s deposition within the discovery period and the failure to move for
an extension of that discovery period before it expired.
For these reasons, Plaintiffs’ motion for leave to take the deposition of Grauer and to
extend the expedited discovery period is granted.
*****
In summary, IT IS HEREBY ORDERED:
1.

Defendants’ motion to compel the deposition of Topham, to extend the deadline
for expedited discovery, and for an award of sanctions against Plaintiffs14 is
GRANTED IN PART and DENIED IN PART, as indicated above.

2.

Defendants’ sealed motion under rule 26(b)(5)(B) for a determination of
Plaintiffs’ privilege claims15 is MOOT.

3.

Plaintiffs’ motion for leave to reschedule the deposition of Grauer16 is
GRANTED, as indicated above.

4.

The following deadlines shall apply in this case:
a.

The deadline for expedited, limited discovery is extended to November 9,
2012, for the sole purpose of conducting the depositions of Topham and
Grauer.

14

See docket no. 29.

15

See docket no. 33.

16

See docket no. 41.
8

b.

Plaintiffs shall file an updated motion for preliminary injunction by
November 19, 2012.

c.

Defendants shall file an opposition to the updated motion for preliminary
injunction by November 26, 2012.

d.

Plaintiffs shall file a reply on the updated motion for preliminary
injunction by December 3, 2012.

e.

The parties shall contact Judge Kimball’s chambers to schedule a hearing
on the updated motion for a preliminary injunction. At that time, the
parties should inform the court about the anticipated time necessary for the
hearing.

IT IS SO ORDERED.
DATED this 19th day of October, 2012.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

9